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It is true, it is much to be pitied ; but that is all : " Ac per
hoc et quse se occiderunt, ne quicquam hujusmodi paterentur,
quis human us affectus eis nollet ignosci ?" Every man (says
St. Austin) will pity, and be ready to excuse,. or to wish par-
don to such women, who killed themselves to preserve their
honour. Cicero tells of certain noble virgins, that threw
themselves into pits to avoid the shame of their enemies' lust:
and St. Jerome tells of seven Milesian virgins, who, to pre-
vent the rudeness of the Gauls that destroyed all Asia, laid
violent hands upon themselves. The Greek epigram men-
tions them with honour, but tells but of three :



KiXrwv 11 s Taurrtv ft-dl^
Oil yv-^ iftllvafiiv a.lfia TO



They chose a sad death before a mixture with the lustful

"> Orat. de Provinciis Consularibus, n. 6. Priestley's Cicero, vol. iii. p. 1 160.
n Adv. Jovinian. p. 186. See Jacob. Anthol.vol. vi. p. 433.
Anyt. Brunck, Anthol. i. p. 800.



AND TRIBUTARY. 345

blood of the Galatians. And the Jews tell of a captive woman
of their nation, who, being in a ship and designed to ravish-
ment, asked her husband, if the bodies of them that were
drowned in the sea should arise again : and when he had
said they should, she leaped into the sea. And among
the Christians that did so, there were many examples. Divers
women of Antioch under Diocletian ; more under Cosroes,
the Persian ; Sophronia, under Maxentius ; St. Pelagia be-
fore mentioned ; and divers others, these persons had great
advocates; but I suppose it was upon the stock of pity and
compassion, that so much bravery should be thrown away
upon a mistake : and therefore I find that St. Chrysostom,
who commended this manner of death upon the account of
chastity, yet is not constant to it, but blames it in his
commentaries upon the Galatians : p and the third Council of
Orleans commanded that the obligations of them that died
by the hands of justice should be received; "si tamen non
ipsi sibi mortem probentur propriis manibus intulisse," always
provided that they did not prevent the hand of justice, that
they did not lay violent hands upon themselves. I end
this with the saying of Procopius, q which is a just determi-
nation of the Case in itself. Blaiog xaraffrgotpri a%oriffrog x.al
^' rb dz fi$ ^avarov Sgarfog avoTjrov roD dgaffrqgiov
oix ficrsecsj rug yi ffupeoaiv sTvai Sox.sT' " A violent
death, or a death hastened by our own hands, is a thing
unprofitable, and full of foolish violence ; and since it wants
prudent counsel, it is by wise men judged to be but the
image and hypocrisy of valour and magnanimity." To
which he adds, Kal roi xai roZro IxXoy/'^Ei&a/ %$, /ewj ri &6%r,rt
sis rb t?ov ayvufLovih, " This also ought to be considered,
that no man ought to be impious or ungrateful towards
God." This is the definition of the case. But then as to the
persons of them that did so, I have nothing to say but this,
that they ought not to be drawn into example : but for the
whole, it was modest and charitable which was decreed by
the French Capitulars : r " Concerning him who hath killed
himself, it is considered, that if any one out of pity or com-
passion will give alms for their souls (so was the custom of
those times), let him give, and say prayers and psalms,
but not celebrate the solemn sacrifice for them ; " " quia

P Gal. i. 4. iGothicor. 4. r Lib. ri. c. 70.



346 OF LAWS PENAL

incornprehensibilia sunt judtcia Dei, et profunditatemconsilii
ejus nemo potest investigare, because the judgments of
God are incomprehensible, and the depth of his counsels no
man can fathom." This was more gentle than that of Virgil.

Proxima deinde tenent mcesti loca, qui sibi letum
Insontes peperere manu, lucemque perosi
Projecere animus ; quam vellent aethere in alto,
Xunc et pauperiem et duros perferre labores :

" He appointed a sad place in hell for them, that so cheaply,
out of impatience, or to avoid a great trouble, threw away
their souls. Fain would they now return to light, and joy-
fully would change their present state with all the labours
and shames, which they, with hasty death, so earnestly de-
clined." But he knew nothing of it, neither do I ; only that
it is not lawful. But how they shall fare in the other world,
who, upon such great accounts, are tempted, is one of God's
secrets, which the great day will manifest. If any man will
be pleased to see more against it, he may find it in St.
Austin,' Hegesippus," Nicephorus Blennidas," Heliodorus/
and divers others, well collected by Fabrot in his fifth
exercitation.



RULE IV.

He that hath suffered the Punishment, is not discharged in
Conscience, unless he also repent of the Disobedience.

1. THIS rule is in effect the same with the first rule of the
first chapter of this book ; but because it is usually discoursed
of also under the head of penal laws, and there are many
persons who, when they have broken the law, and have
suffered punishment, think themselves discharged : and be-
cause it ministers some particularities of its own, I have
therefore chosen distinctly to consider it.

2. In this inquiry, penal laws usually are distinguished
into laws purely penal, and mixed. 1. Laws purely penal are
such which neither directly command, nor forbid, but impose

* /Kneid. vi. 434. Heyne.

* Lib. i. de Civit. Dei, c. 20, 21, 26, ep. 61, ad Dulcit. et lib. xi. contra ii. ep.
Gaudent. c. 23. u Excid. Hieros. iii. c. 17.

* Epitom. log. c. IT. J ^Ethiop. f .



AND TRIBUTARY. 347

a penalty upon him that does or omits an action respectively.
So Moses" to the children of Israel ; " If a man shall steal an
ox or a sheep, and kill it or sell it, he shall restore five oxen
for one ox, and four sheep for one." 2. A mixed penal law
is, when with the precept or prohibition the penalty is ad-
joined : so said God; b " Ye shall not hurt the widow or the
fatherless ; if ye hurt them, they shall cry unto me, and I
will hear their cry, and my fury shall be kindled, and I will
strike you with the sword, and your wives shall be widows,
and your children fatherless." And of the same nature is
that canon of the Council of Agatho : c " We do, by a special
order, command all secular persons to hear the whole Divine
service upon the Lord's day, so that the people presume not
to go forth before the blessing of the priest : but if any man
shall presume to do so, let him be publicly punished by the
bishop." 3. Other laws are purely moral, that is, preceptive
without any penalty. This distinction Silvester derides as
childish, and of no use ; but others deride him : but whatever
use it can be of to other purposes, it is of little in this. For
whether the penalty be annexed or no, it obliges to penalty ; d
and therefore whether it be preceptive or no, it obliges to
duty : and we see it in ocular demonstration in divers of the
Levitical and moral laws of God, which sometimes are set
down in the style of laws purely penal, and the same laws in
other places are penal and prohibitive.

3. (1.) But why are punishments decreed in laws? Are
they for the obedient, or for the disobedient? for good men,
or for bad ? Certainly for them that do not obey. Now they
that obey not, do well or ill, or it is indifferent whether they
do or no : if they do well, they are to be rewarded, and not
punished ; if the thing after the sanction be still indifferent,
why shall he suffer evil that does none ? But the case is plain,
that in all just governments the punishment is decreed in the
laws, that the law may be obeyed : and unless it be equally
good to the prince that his subjects obey or be punished,
that is, unless it be all one to him whether they be happy
and advantaged, or miserable and punished, and that he cares
not whether the subject receives the good or the evil of the

Exod. xxii. 1. b Ibid.

c Can. Mass, de Consecrat. dist. 1.

d Tacite permission est quod sine ultiooe prohibetur Tertul. i. adv. Mure.



348 OF LAWS PENAL

law, it cannot be supposed that when the subject is
punished, the law is satisfied in its first intention.

4. (2.) Add to this, If suffering the punishment does
satisfy the law, then the subject is not tied to obey for con-
science' sake, but only for wrath, expressly against the
apostle ; and then laws would quickly grow contemptible :
for the great flies that break through the cobweb lawns of
penal laws, would be both innocent and unconcerned ; inno-
cent, as not being tied in conscience, and unconcerned, as
having many defensatives against the fine.

5. (3.) The saying, therefore, of St. Austin 6 hath justly
prevailed : " Omnis poena, si justa est, peccati poena est, et
supplicium nominatur ; Every penalty is relative to an
offence, and is called punishment." And there can be no
reason given why, in laws, there are differing punishments
assigned, but that they be proportionable to the greatness of
the fault. It follows, therefore, that whoever is obliged to
suffer the punishment of the law, do ask God's pardon and
the king's, for having done a sin, by which only he could
be obliged to punishment. ' Reatus,' or * guilt,' both in
Divine laws and in human, is an obligation to punishment :
for ' reatus poenae' and ' reatus culpee' differ but as the right
and left hand of a pillar ; it is the same thing in several
aspects and situations. And Lucius Veratius f was a fool, and
a vile person ; and having an absurd humour of giving every
man he met a box on the ear, he caused a servant to follow
him with a bag of money, and caused him to pay him whom
he had smitten, twenty-five asses, a certain sum which was,
by the law of the twelve tables, imposed upon him that did
an injury ; but considered not, that all that while he was a
base and a trifling fool for doing injury to the citizens.

6. This rule holds in all without exception : it seems
indeed to fail in two cases, but it does not ; only the account
of them will explicate and confirm the rule.

7. (1.) In actions which are not sins, but indecencies, or
unaptness to a state of office and action, the evils that are
appendant to them are also but ' quasi pcenee, half punish-
ments ;' such as is the irregularity that is incurred by a judge
that gives sentence in a cause of blood; he is incapable of
entering into holy orders by the ancient laws of the Church.

Lib. i. Retract c. 9. f A. Gellius, lib. xx. c. 1. Oiselii, p. 1092.



AND TRIBUTARY. 349

A butcher is made incapable of being of the inquest of life and
death : which incapacity is not directly a punishment, any
more than it is a sin to be a butcher ; but certain persons are,
without their fault, declared unfit for certain states or employ-
ments. Now this confirms the rule, for still the proportion
is kept ; and if it be but like a fault, the consequent of it is
but like a punishment. And if at any time these appendages
are called punishments, it is by a catachresis or an abuse of
the word, and because of the similitude in the matter of it.
So we say, ' The righteous are punished,' that is, they suffer
evil, for their own trial, or for the glory of God : and so it is
in the law : " Sine culpa, nisi subsit causa, non est aliquis
puniendus ; No man is to be punished without his fault,
unless there be cause for it :" that is, no man is to suffer that
evil, which in other cases is really a punishment, and in all
cases looks like one. And from hence comes that known
rule, and by the same measure is to be understood, " Etsi
sine causa non potest infligi poena, potest tanien sine culpa."
The word ' pcena ' is taken improperly for any evil con-
sequent or adjunct.

8. (2.) This seems to fail in laws that are conditional or
conventional ; such as are when the prince hath no intention
to forbid or command any thing, but gives leave to do it, but
not unless you pay a fine. Thus if a prince commands that
none shall wear Spanish cloth, or ride upon a mule, or go
with a coach and six horses, under the forfeiture of a certain
sum, this sura is a punishment, and the action is a fault :
but if the subjects shall ask leave to do it, paying the sum,
then it is a conditional or conventional law, and obliges not
to obedience, but to pay the fine. For these laws are not
prohibitive, but concessory ; and there is no sign to dis-
tinguish them from others, but the words of the law, the inter-
pretation ofthejudges,and the allowed practice of the subjects.

9. Of the same consideration are all promises, and vows,
and contracts, which are made with a penalty annexed to the
breakers. The interested person is first tied to keep his word :
if he does not, he sins. But if he does sin, he must there-
fore pay the penalty ; and if he does not, he sins twice.
" Haud scio," says Cicero, g " an satis sit eum, qui lacessierit,
injuriae suae poenitere." It is not enough for him to repent

sOffic. i. c. 11, i. Reusing, p. 86.



350 OF LAWS PENAL

of the injustice, but he also must pay his fine ; and yet that
does not acquit him from the first fault, but prevents a
second. He that so contracts, is twice obliged ; and the
latter fault is paid by the penalty ; and the first fault by
repentance and that together.



RULE V.

It if not lawful for a guilty Person to defend himself by
Calumny, or a Lie, from the Penalty of the Law, though
it be the Sentence of Death.

1. ALL the wisdom of mankind hath ever been busy in find-
ing out and adorning truth, as being that in which we are to
endeavour to be like God, who is truth essentially : and there-
fore Pythagoras a in ./Elian did say, that ' the two greatest and
most excellent works that God gave to mankind to do, are
the pursuits of truth and charity ;' for these are excellences,
for which God himself is glorious before men and angels.
The Persian magi say, that Onnusd (so they called the
greatest of their gods) was in his body like light, and his soul
was like truth ; and that therefore " by truth we are like to
God, but by a lie we are made mortal," says Plato : b " Veri-
tas, quo modo sol illuminans, colores, et album et nigrum
ostendit, quails sit unusquisque eoruna, sic ipsa quoque refel-
lit omnem sermonis probabilitatem ; merito a Grsecis quo-
que acclamatum est, principium magnae virtutis est regina
veritas; c As the sun gives light to us, and distinction to
black and white, so does truth to speech ; and therefore the
Greeks did rightly affirm, that truth is the beginning of the
great virtue ; that is, of perfection or virtue heroical," said
St. Clement.

2. This is true in all regards : but the question is, whe-
ther truth can be practised at all times. For God speaks
truth because it is his nature, and he fears no man, and hath
power directly to bring all his purposes to pass : but the
affairs of men are full of intrigues, and their persons of infirm-
ity, and their understandings of deception ; and they have
ends to serve which are just, and good, and necessary ; and
yet they cannot be served by truth, but sometimes by error

Lib. xii. Var. Hist. b Lib. vi. de Rep. c Clem. Alex. lib. vi, c. 4.



AND TRIBUTARY. 351

and deception. And, therefore, the ancients described Pan,
who was the son of Mercury, their god of speech, with the
upper part like a man, and the lower part like a beast, roush,
hairy, and deformed ; not only to signify truth and falsehood,
and that truth is smooth, even, and beauteous, and a lie is
rough, ugly, deformed, and cloven-footed (" quia mendacii
multiplex divortium," says one), but to represent, that in our
superior faculties, and our intercourse with the power above
us, we must speak truth, but that in our conversation with
men below, it is necessary sometimes by a lie to advantage
charity, by losing of a truth to save a life. Here then is the
inquiry.

I. Whether it can in any case be lawful to tell a lie ?

II. Whether it be lawful to use restrictions and mental
reservations, so that what we speak, of itself is false, but
joined to something within is truth ?

III. Whether, and in what cases, it is lawful to equivo-
cate, or use words of doubtful signification, with a purpose to
deceive, or knowing that they will deceive ?

IV. Whether it be lawful, by actions and pretences of
actions, to deceive others for any end ; and in what cases it
is so?

Question I.
Whether it can in any case be lawful to tell a lie ?

3. To this I answer, that the Holy Scriptures of the Old
and New Testament do indefinitely and severely forbid
lying. " A righteous man hateth lying," d saith Solomon ;
and Agur's prayer was," Remove from me vanity and lies." 6
" For the Lord will destroy them that speak lies." f And
our blessed Saviour condemns it infinitely, by declaring
every lie to be of the devil. " When he speaketh a lie, he
speaketh of his own, for he is a liar and the father of it."
" Lie not therefore one to another," saith St. Paul: g " For
all liars shall have their part in the lake which burneth with
fire and brimstone." 11 Beyond these things, nothing can be
said for the condemnation of lying.

4. But then lying is to be understood to be something
said or written to the hurt of our neighbour, which cannot

d Prov. xiii. 5. e xxx. 8. f Psalm v. 6.

Col. iii. 9. h Rev. xxi. 8, 27.



352 OF LAWS PENAL

be understood otherwise than to differ from the mind of him
that speaks. " Mendacium est petulanter, aut cupiditate
nocendi, aliud loqui, seu gestu significare, et aliud sentire :"
so Melancthon : " To lie is to deceive our neighbour to his
hurt." For in this sense a lie is naturally and intrinsically
evil ; that is, to speak a lie to our neighbour is naturally evil.
Not because it is different from an eternal truth, for every
thing that differs from the eternal truth is not therefore cri-
minal for being spoken ; that is, is not an evil lie : and a man
may be a liar, though he speaks that which does not differ
from the eternal truth ; for sometimes a man may speak that
which is truth, and yet be a liar at the same time in the same
thing. For he does not speak truly, because the thing is
true ; but he is a liar, because he speaks it when he thinks
it is false. That, therefore, is not the essence or formality of
a lie. " Vehementer errant, qui tradunt orationis esse pro-
priurn signiticare verum necessarium," said Scaliger ; a man
may be a true man, though he do not always speak truth.
If he intends to profit and to instruct, to speak probably and
usefully, to speak with a purpose to do good and to do evil,
though the words have not in them any necessary truth, yet
they may be good words. Simonides and Plato say it is
injustice, and therefore evil ; so does Cicero ; ' and indeed so
does the Holy Scripture, by including our neighbour's right
in our speaking truth ; it is " contra proximum," it is
" against our neighbour;" for to himself no man can lie, and
to God no man can lie, unless he be also an atheistical per-
son, and believes that God knows nothing that is hidden,
and so is impious when he says a lie. But a lie is an injury
to our neighbour ; who, because he knows not the secret, is
to be told that in which he is concerned ; and he that deceives
him, abuses him.

5. For there is in mankind a universal contract implied
in all their intercourses, and words being instituted to declare
the mind, and for no other end, he that hears me speak,
hath a right in justice to be done him, that as far as I can,
what I speak be true ; for else he by words does not know
yonr mind, and then as good, and better, not speak at all.
" Humanae aures verba nostra talia judicant, qualia foris
sonant. Divina vero judicia talia esse* audiunt, qualia ex

1 Offic. lib. iii.



AND TRIBUTARY. 353

intimis proferuntur."^ Though God judges of our words by
the heart, yet man judges of the heart by the words ; and
therefore in justice we are bound to speak so as that our
neighbour do not lose his right, which by our speaking we
give him to the truth, that is in our heart. And of a lie thus
defined, which is injurious to our neighbour so long as his
right to truth remains, it is that St. Austin k affirms it to be
simply unlawful, and that it can in no case be permitted,
" nisi forte regulas quasdam daturus es, quibus noverimus
ubi oporteat mentiri, ubi non oporteat;" by way of confi-
dence and irony: he condemns it all, "unless peradventure
(says he), you are able to give us rules, when a man may lie,
and when he may not." " Quod non est bonurn, nunquam
erit bonum, 1 That which is not innocent in itself, can never
be made so." But " vitia non sunt, quibus recte uti licet ;" ra
if it can in any case become good, it is not of its own nature
evil : so that if a lie be unjust, it can never become lawful ;
but if it can be separate from injustice, then it may be inno-
cent. Here then I consider,

6. This right, though it be regularly and commonly be-
longing to all men, yet it may be taken away by a superior
right supervening ; or it may be lost, or it may be hindered,
or it may cease upon a greater reason.

7. (1.) Therefore upon this account, it was lawful for the
children of Israel to borrow jewels of the Egyptians, which
supposes a promise of restitution, though they intended not
to pay them back again : God gave them commandment so
to spoil them, and the Egyptians were divested of their
rights, and were to be used like enemies.

8. (2.) It is lawful to tell a lie to children or to madmen,
because they, having no powers of judging, have no right to
truth : but then the lie must be charitable and useful ; be-
cause they are defended by the laws from injury, and there-
fore must not have a lie told them that can do them mis-
chief. So that if a lie be told, it must be such as is for their
good ; for though they have no right to truth, yet they have
right to defence and immunity : and an injurious lie told to
a child or madman is a sin, not because it deceives him, but
because it deceives him to his prejudice. Quintilian, the

J S. Gregor. lib. xxvi. Moral, c. 7. k Epist. viii. ad Hieron.

1 Eurip. in Phoeniss. m Lactant. vi. lustit. 16.

VOL. XIII. A A



354 OF LAWS PENAL

great master of children, says, "Utilitatis eorum gratia multa
fingimus, We feign many things to affright or allure
children to good," and from evil respectively. And so do
physicians to their patients, abusing the fancies of hypochon-
driacal and disordered persons into a will of being cured.
Some will do nothing without a warrant ; others are impa-
tient of your converse, unless you seem to believe them: and
physicians can never apply their remedies, unless they pre-
tend warrants, or compliances, and use little arts of wit and
cozenage. This and the like were so usual, so permitted to
physicians, that it grew to a proverb, " Mentiris ut medicus; "
which yet was always to be understood in the way of cha-
rity, and with honour to the profession. But this any phy-
sician may not do, that is, not to every patient : for if the
man be wise, and can choose and can consider, he may not
be cozened into his cure by the telling of a lie, because he is
capable of reason, and therefore may choose what he hath
a mind to, and therefore to cozen him is to injure him : and
no man mst commit a sin to do a good turn to a man
against his will. And thus also in the case of children:
their tutors or parents may not tell them every lie; they may
not teach them lies and make them confident in vanities ;
but for their good, govern them as they can be governed.
" Ut puerorum aetas improvida ludificetur ; " n all the world
consents, when it is for their improvement. And to this is
reduced the permission of inventing a witty fable, or telling
a false story, to gain ground upon him that believes a false
opinion, and cannot any other way so easily be confuted.
Thus when two Eutychian bishops, who believing that the
two natures of Christ made but one, did consequently believe
that the Divinity did die as well as the humanity in the death
of Christ, came to the court of a Saracen prince, he pre-
tended great sorrow and consternation of mind at the receipt
of some letters ; into the contents whereof when they with
some curiosity inquired, the prince with a seeming great sor-
row told them he had received certain intelligence that the
archangel Gabriel was dead. They to comfort him told him
certainly it could not be true ; and for their parts they did
believe it to be impossible. ' O fathers,' said the prince,
' you do not believe it to be impossible that an archangel

n Lucret. i. 938. Eicbstadt, p. 39. Niceph. xvi. c. 35.



AND TRIBUTARY. 355

should, when you affirm that the Divinity did die.' Such a
fiction as this no wise man reproves ; it is but like the sup-
posing a false proposition in disputation, that upon that false



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