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crimes, were made poor, if they swore their insufficiency,
were to be freed from all further trouble ; and the creditors
that refused to obey the edict, should pay ten pounds of gold ;
and Bia pwriv Ivdu/Ajjaw, " for their mere thought" of doing
otherwise should be put to death. J end this with the say-
ing of the Jewish doctors : " Quicquid sapientes vetant palam
fieri, id etiam in penetralibus vetitum est; Whatever the
wise men forbid to be done in public, the same must be un-
derstood to be forbidden in your closet." It was the saying
of Rabbi Bachai.

* Lib. iviii. ff. de Pcrnis, lib. Fugitivus, ff. de Verbor. Signific. ' Novel. 135.



Human Laws^ before sufficient Promulgation, do not oblige
the Conscience.

1. As the faults of subjects are not cognoscible without pub-
lication, so neither are the wills of princes. " Leges sacra-
tissimae, quse constringunt hominum vitas, intelligi ab homi-
nibus debent," says the law. 3 But in this there is no diffi-
culty : all that is made is in the assignation of the sufficiency
of the promulgation. A Spanish lawyer, Selva, and he alone,
so far as I have heard or read, affirms the very solemn edi-
tion of it and declaration in the court or council to be suffi-
cient. But as he speaks it wholly without reason, so he is
to be rejected without further trouble. Others require one
proclamation in one or more places, according to the great-
ness of the province or jurisdiction ; but it can never be
agreed positively how much is enough. Therefore, so far as
our consciences can be concerned in it, these following pro-
positions are certain, and they are sufficient.

2. (].) It is not necessary that laws, in their promulga-
tion, be so divulged as that the notice of them reach every
single subject. Not only because, in most laws, all persons
are not concerned, but also because it is morally impossible ;
I mean, in a great province, where the laws are commonly of
greatest concern, and the promulgation more to be regarded
and more diligently endeavoured. For laws of men are not
like the sun, searching into all corners ; but as the law itself
is such as regards that thing which happens most commonly,
so the promulgation is of a symbolical nature, and can arrive
but to most persons.

3. (2.) la all princely and sweet government there must
be such a publication of laws, as must be fit to minister to
the public necessity and the public duty, that the laws be no
snares, but piously intended, prudently conducted, sufficiently
communicated, and reasonably exacted with abatement of
all those deficiencies which are incident and unavoidable to
mankind ; so that, if what be in council judged sufficient
for promulgation, do not prove so in the event of things, and

L. Leges, C. de Legib. et Constit. Vide etiam authent. ut factse novae
Constit. de Benefic. q. 22, n. 14.


in the province, the defect be put upon the insufficient
publication, not upon the account of disobedience.

4. (3.) Be the publication legally sufficient, or not suffi-
cient, it is certain that the conscience is not tied by the law
till it be known. I do not say but that the prevarication may
be justly punished, because the law may be published as well
as is morally possible, or prudently and civilly is required,
and yet some may inculpably be ignorant of it. But be it so
or otherwise, it is impossible that they who know not of it,
can obey ; and if they cannot, they cannot be obliged : for
that is no law, but madness, which obliges a man to that
which is impossible.

5. (4.) The care and sufficiency of publication are wholly
incumbent upon the lawgiver, not at all upon the subject ;
that is, the subject is not bound to seek after the law, but
only to see that he do not turn his ear from it, or studiously
decline it, or endeavour to be ignorant. For a law, though
it be for good to the public, yet to the particular being a
restraint upon our natural or political liberty respectively, no
man is bound to seek his own fetters, or put the burden upon
his own neck, but to wear it well when it is imposed : but to
refuse to hear is the first act of disobedience ; but to hear is
the first instance of obeying ; therefore till he hath heard,
he is obliged to nothing. This hath no limitation or excep-
tion but this : If the subject hath heard there is a law, he is
bound to inquire after it ; for then it is sufficiently published :
the lawgiver hath done his duty. But before he hath heard,
it is to him as if it were not : and that which is not, cannot
be numbered, cannot be accounted for. The first is sufficient
to oblige him ; he is bound, because he knows the will of the
lawgiver hath bound him : but then he must inquire for his
own sake; for otherwise he cannot perform his obligation.

6. (5.) Although, as to conscience, the former measures
are certain, yet the legislator hath power to declare when the
promulgation is sufficient for the nullifying of all contracts
intervening, or evacuating privileges, and changing all exte-
rior events of law ; because the being of all these depends
upon the will of the prince, and of his law. Only when this
is reduced to practice, in the matter of contracts, if they
were valid by the law of nature, he that did contract, is
obliged to stand to it, if the other requires it ; but if it be his


own advantage, he is bound to quit it, if the other recedes
and makes use of his advantage. For the law can tie him to
suffer inconvenience for the public interest, but not to do any
evil. Thus if Titius contract with Mavius to carry twenty
ton of wheat from Sicily to Rome, and before the contract a
prohibition of such contracts was legally published, and yet
he heard not of it ; he is bound to obey it : but if Maevius,
who is like to be the gainer, stand upon his right of justice
and natural consent, Titius must make him amends, but he
must not transport the corn. But this is in case they be not
both subjects of the same prince. And the reason of this is
plain, because the stranger hath a natural right by justice
and stipulation, but the subject hath a law upon him ; there-
fore the other is not tied to quit that, but the subject must
obey this; not to do an injury, for no law can oblige him to
that ; but to suffer one that is tolerable and is outweighed by
the public advantage. But if they be both the subjects of
the same law, the law that forbids one to make the contract,
does also, by implication, forbid the other to exact that which
is illegal. So that although the law cannot disoblige Titius
from verifying a contract that is valid in the law of nature,
yet Maevius can remit his right, and the law can tie him
to that.

7. This holds in all things, where the parties can give
consent to the invalidating of the contract. But sometimes
they cannot, and then the rule of conscience is, ' Standum
est juri naturali,' whatever was ratified by nature and religion
must remain for ever. The Council of Trent makes a law,
that all clandestine marriages shall be null : she publishes
the law, and declares it from a certain time to be valid. A
poor vinedresser in the Valtoline hears nothing of it, but
gets the daughter of his master the farmer with child after
contract ' per verba de praesenti.' The law is urged upon
him ; the parties are both threatened, and are in that fright
willing to recede. But they were told by a prudent confes-
sor, that they could not consent to any such separation ; and
he told them truly. For in marriage there is a necessitude
contracted by a law of nature, and not only a mutual right
transmitted to each other, but there is a band of religion, a
sacramental tie, or relation that God hath joined, and no
man can put asunder. But until the contract is passed so far


as that it is become a marriage in the law and state of nature,
the prohibition ought to prevail upon them.

8. Lastly, In privileges there is no difficulty, because the
law is not bound to give any at all ; and therefore may
restrain them at any time, without giving a reason. Thus if
a law were made, that all illegitimate children that were
born after the death of the Emperor Maximilian should be
incapable of a prebend or benefice in a church ; he that
heard not of the law, might justly be put out after solemn
investiture. For no man is injured, because he hath not a
favour done him.


That a Law should oblige the Conscience, does not depend
upon the Acceptation of the Law by the People.

1. THIS rule hath suffered great prejudice, not only by the
contrary opinion of the civilians and canonists, who in very
great numbers oppose it, but by all persons almost who live
under governments democratical, or do not well consider the
powers and consequents of government. But the case in
short is this :

2. All governments in the world did either begin right or
wrong. If right, it was by Divine appointment, or by the
multiplication of the posterity of a patriarch, and the at^ffig,
' increase' of paternal government. This is the natural way,
and this is founded upon natural reason, and a Divine com-
mandment. This hath in it no evil, and no question ; and it
is just the beginning of monarchy, it produces no other

3. But if the government comes not this way, it comes in
wrong. Either from tumults, by necessity and evil experi-
ence, being forced to permit and establish an order and
government ; or directly by war and violence ; or else in the
destitution of a governor, when all are left to themselves, and
none hath power over them, they may do what they list, and
order things as they please, and part with as much power as
they think fit, and keep some to themselves, and confound all
politic principles, and divide power, as two earnest disputants


do divide the truth when they have torn her in pieces, each
part running away with that share that comes next his hand.
4. Now from these beginnings of government, several
republics and principalities have been established ; and when
it happened that any famous government entered the wrong
way, they became exemplary to others in their polity and in
their principles, and made their actions become rules to
others. Thus it was that the Roman people, keeping the le-
gislative power in their own hands, made kings, and consuls,
and officers, at their pleasure, but their consent was always
demanded when a law was to be made, as is affirmed by
Asconius Pedianus ' in Orationem pro C. Cornelio,' and by
Badaeus and Zasius. 8 These laws were made in a convocation
of the people, in thirty courts, and were called Curiatae, as
is affirmed by Suetonius 'in Augusto,' b and in Cicero in his
epistles to Lentulus ; they were also called 'Populars' by
Cicero in his Orations. Now this people so largely reigning
over the world, and being exemplary by their wisdom and
their laws, did easily transmit this license unto the people of
most nations, who needed but little teaching to bridle the
power of their princes, to which they were but too much
tempted by that ' libido regnandi/ that ' lust of empire,'
which possesses the greatest part of the world ; and by their
own strength, which they often made their kings to feel, and
would not lend to them in their needs but upon hard condi-
tions. Add to all this, that many princes have been gentle
and kind, and many wise, and would not put a bridle upon
such an untamed beast without their own consent : not only
that they might obey more willingly, but lest they should not
obey at all, as knowing it to be better that they should be
ruled as they please, than not at all.

. Libertatis servareris umbram,

Si, quidquid jubeare, velis e

This fantastic liberty the people would seldom be without,
and they must have what they were resolved on : for when
they please, they are all kings.

5. Upon the account of these and some other causes, it
is come to pass that, in many places, laws have their binding

* In lib. ii. ff. de Origine Juris.

k Cap. liv. B. Crusius, p. 320, vol. i.

c Lucan. iii. 146. Oudendorp, p. 187.


power only by the consent of the people ; in their tribes and
courts, or by their representatives, or by their manners and
customs : and from hence come these sayings of some very
wise men ; " Lex nullam vim obligandi habet nisi ex more ; '*
so Aristotle : d and, " Leges promulgatione constitui, firman
autem usu," says Gratian : and the civil law expressly,"
" Jpsae leges nulla alia causa nos tenent quam quod judicio
populi receptse sunt; The reception and approbation of the
people is the only firmament and sanction of the law."
Now that the civil law says it, it was ' ex more Romanorurn ; '
among the old Romans it always was so ; and Aristotle speaks
at the rate of him who had been bred under the popular
government of the Greeks, and therefore it is no wonder that
any of them speaks so : but as for the words of Gratian,
Laurentius and the Archdeacon expound them to mean that
the laws receive from the use of the people ' firmitatem stabi-
litatis, non auctoritatis ; ' that is, ' de facto/ they are made
more firm and lasting by the consent and manners of the
people, but not 'dejure' more obliging; according to that
of Tertullian ; f " Neque civis fideliter legi obsequitur igno-
rans quale sit quod ulciscitur lex. Nulla lex sibi soli con-
scientiam justitiae suae debet, sed eis a quibus obsequium
expectat: caeterum suspecta lex est quae probari se non
vult ; improba autem, si non probata, dominetur ; A citizen
does not faithfully obey that law (meaning of going to war),
who knows not what that is which is to be punished. For
that a law is just, is owing in part to him that is to obey it.
That law is to be suspected, which will not endure a trial ;
but if, being tried, it be rejected, it cannot prevail without

6. Having now, by this narrative, laid open the secret and
foundation of this opinion, and prevented the objections that
can be made, the rule is certain and easy. The consent of
the people gives no authority to the law ; and there is no
way necessary to the sanction and constitution, save only to
prevent violence, rebellion, and disobedience. But because
I am not writing rules of policy, but rules of conscience, I
am to say, that if the legislative power be in the prince, that
is, if he be supreme, he is to decree the law ; but wherever

d Lib. ii. Polit. c. 6. * Sect. Leges, dist. iv. lib. de quibus ff. de Legibus.
f Apolog. c. iv.


the authority be, that authority is derived from God, and is
only less than he : and although a horse sometime cannot
be ruled without strokings and meet and gentle usages, yet,
for all that, his rider is his master : and he that said, " Obey
them that have the rule over you, and submit yourselves to
every ordinance of man for the Lord's sake, whether to the
king, as to the supreme," &c. did not appoint the supreme
to rule by a precarious power ; and if he who hath authority,
makes a just law, either the people are bound to accept the
law, or they despise the authority. And indeed it is a con-
tradiction in the terms, that a law be imposed, and yet
that it be no law of itself ; that is, that the effect of the cause
should be a necessary condition in the cause itself; and that
its own work is nothing, unless what it does work give it
force. It must be a law, before they accept it ; and if it be
a law, they are bound to accept it ; and, therefore, their
accepting cannot make it a law.

7. In popular governments, the people have their suffrages
in the legislative ; but then it is because they govern : but
when they have not the legislative, he that hath it, must not
ask them leave to use it, when God hath given him power.
They indeed who suppose kings to be trustees and ministers
of the people, have some pretence (if they supposed true) to
affirm the acceptation of the people to be necessary. But
yet if they did suppose true, it were indeed a pretence, but
no more. For when the king is chosen, and is by the people
(that I may use the expression of Tiberius) " tanta tamque
libera potestate instructus," invested with a princely power,
and the legislative ; he, by himself or by his senate, accord-
ing to the constitution of the province, is to make the law,
and to punish them that break it, and not to ask them if they
will please to obey it. " Lex instituitur, cum promulgatur,"
says the ' Authentic :' and therefore whosoever does not obey,
whether it be a single person or a multitude, they sin against
God ; it is disobedience in a single person, and rebellion in the
multitude. All which is true with the provisos of the former
rules, that the laws be, upon all their just accounts, in all
other things, obligatory.

8. This rule does also fail in all arbitrary conventions and
precarious governments ; in such which have no coercitive
power, but what is by voluntary concession ; such which can


convene and dissolve at pleasure, as colleges and fraternities.
For as they meet at pleasure, so they must be governed as
they please : their power comes not from God, but from
man ; and their authority is equivocal.

9. Some insert one case here, saying, that ' If a law be
refused by the greater part of the people, then single per-
sons are excused, because it is to be supposed that the prince
cares not that single persons observe the law, since so little
will serve no interest.' But if this were true, yet there is
in it so much caution to be used, so many provisos, and so
much probability to the contrary, that it were as good that it
were not true ; for it cannot give rest or peace to the con-
science. For, 1. Whether the prince do secretly give leave
or no, is a presumption of infinite uncertainty. 2. The con-
trary may very well be supposed ; for he that is troubled at
the rebellion of many, will not give leave to one to disobey.
3. If these few single persons do submit, they become good
examples, and are confessors for the reputation of the king's
wisdom and authority. 4. What is evil in the whole, is so
in every particular ; because the people is but an aggregate
body of single persons. 5. " We must not follow a multi-
tude to do evil :" and all rebellion is of that nature, that it is
"as the sin of witchcraft;" and who would be a witch,
because all the country is so ? 6. He that partakes of other
men's sins, shall also partake of their punishment. Upon
these accounts, I judge it very unsafe for any single person
to resist a just law of a just superior, upon hope of escaping
in the crowd. But this rule 8 is only true when the law is
just and good for public profit and usefulness of the peo-
ple. For if it be an unreasonable law, it binds not as a law,
but as by promise and contract ; that is, it does not bind by
the sanction of the law, but the acceptation of the people.
And so the ancient lawyers are to be understood : " Lex
praecepti tollitur, si moribus utentium non recipitur; The
obligation of the law is taken off, unless it be received into
the manners of the subjects." But the instance tells in what
sense this is true. The pope and council h cannot command
continence to a certain sort of persons after promotion against
their wills ; " quia continentia est res quae potest persuaderi,
imperari autem non; because continence is a thing that

( Rule iii. h Pacormit. cap. Cum Olim. de Cleric. Conjug.


maybe persuaded, but not commanded." The matter of the
law is to be ordered according to the measures of the third
rule ; but, supposing that, this rule is certain.


Human Laws of indifferent Matter do not oblige the Con-
science of the Subjects out of the Dominions of the Superior.

1. " EXTRA territorium jus dicenti, non paretur impune,"
is a famous saying in the canon law ; "A man may safely
disobey the law of his prelate, if he be out of the diocess."
And the reason is, because, beyond his diocess, he hath no
jurisdiction ; a and beyond his jurisdiction a prince hath no
power. " Lex est jus proprium civitatis," saith the law; b
" The law hath no power beyond its own city." Thus
anciently, in the province of Canterbury, the people did not
fast upon St. Mark's day ; but if they were within the pro-
vince of York, they were tied to the common law, or custom
of the Church besides. Thus also it is in maritime places,
especially in places of public trade and merchandise : if
the several subjects should keep the several laws of their
own princes, it would cause great confusion and disorder
upon the place of trade ; and since it is certain that strangers
must live by the laws of the country where they sojourn,
it is certain they are not tied to the laws of their own,
because they may be contrary.

2. (1.) But this hath divers limitations. For, 1. It does
not hold in the substantial matters of religion, where the reli-
gions of the country differ. It is not lawful for a subject
of England to go to mass in a foreign country ; not only
upon supposition that the office is suspicious or to be blamed
by the measures of the Divine law, but if the laws of our
country have, upon other prudent and just considerations,
forbidden it. The sons of the Church of England, professing
under the government episcopal, may not lawfully communi-
cate in the Huguenot Churches with them that believe
episcopacy to be antichristian or unlawful, because this does
relate to the evil and detriment of those laws, and that

Cap. ii. de Constitut. n. 6. b Lib. Oznnes Populi de Justitia et Jure.


government and that authority, under which we still are tied.
But in the ceremonial and ritual part of religion, where the
religion is the same, we are not tied abroad to our country-
customs. A subject of the Church of England may stand at
the holy communion, or eat it in leavened bread, if he
come into protestant countries that have any such custom :
and the reason of this is, because the contrary would give
scandal, to which our own laws neither do nor can oblige
abroad ; and if any be offended at our different ceremonies
at home, he must look to it ; we are not concerned in any
thing but to obey our superior, and quietly to render a rea-
son to our brethren.

3. (2.) This rule does not hold in such laws which are
the specification of the Divine laws. Thus if a subject of
England should be in Spain, and there see his daughter dis-
honoured, or his wife consent to her shame, and take her in
adultery, he may not kill her, though in Spain it be lawful
for him to do it. The reason is, because she is not a sub-
ject of Spain, but hath a habitual relation to England, and
therefore it is murder, if it be done by an English subject.
Concerning all his own subjects, the prince of the country
and the legislative is to give limits to the indefinite laws of
God ; and the reason is that which St. Paul gives, because
he who hath " the rule over them, is to give an account of
their souls." Every law, therefore, is to acquit or condemn
her own subjects ; and, therefore, if a Spaniard does dis-
honour the bed of an English subject in Spain, it is lawful
there to kill him ; because his own prince's law condemns
him, and gives leave to the injured person to be executioner.
All these particulars rely upon the same reason.

4. (3.) This rule does not hold when, though the subject
be abroad, yet the action does relate to his own country.
Thus it is not lawful abroad to coin or counterfeit the money
of his country, to rail upon his prince, to prejudice his sub-
jects, to violate his honour, to disgrace his nation, to betray
the secrets and discover the counsels of his prince ; because
the evil, done out of the territory, being an injury to them
within, is as if it were done within. When the dispute was
between the Athenians and Thebans about their confines, and
the parties stood at a little distance, disputing and wrangling
about the breadth of an acre of ground, Tmiotheus shoots


an arrow, and kills a young Theban gentleman. The Thebans
demand that Timotheus be put to death by the laws of
Athens, as being their subject ; they refuse to do so, but
deliver Timotheus to the Thebans, giving this reason, He
shot the arrow within the Athenian limit, but it did the
mischief within the territory of Thebes ; and where the
evil is done, there and by them let the criminal be punished.
Being abroad is no excuse in this case. If a subject shoots

Online LibraryJeremy TaylorThe whole works of the Right Rev. Jeremy Taylor (Volume 13) → online text (page 30 of 61)