« PoprzedniaDalej »
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 resistance; 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 contempt. 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 orthe 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 presumed 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 interpretative renunciation of our religion, or the laws of our superior 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 n Lib. de Bono Conjug. cap. 16.
curates of souls to attend a cure in the time of the plague, to go to sea in a storm, to stand in a breach for the defence 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 show 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
proportion will be no great matter (because that is not sufficient 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 evil any 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.
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-servants 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 employed, but he was not his lord. "Par in parem imperium non habet," says the law.
• Clement. Exivi de Paradiso, de verb. Signif,
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 therefore 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 command of his master Ptolemy.
Antonî tamen est pejor quam causa Photini ;
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 commandment, 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 prescription 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 contrary civil law: "Ye shall not lie," saith our Lord God', "nor deceive every one his neighbour:"-and let "no man defraud or circumvent his neighbour in bargaining," saith St. Paul. Karà τηv åyoρàv åþevdev, said the old Attic law, from the voice of nature; which Cicero well renders, "Tollendum 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.
℗ Martial, iii. 6. Mattaire, p. 62.
Lib. in Causæ. sect. idem Pomponius. ff. de minoribus. et. lib. item si precio sect. quemadmodum. ff. locati et conducti.
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", "Sententia non à suo judice lata, nulla est:"—which is excellently rendered by St. Paul, "What art thou, O man, who judgest 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 consulentes patriæ 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 people." "Officium est imperare, non regnum," "To rule is not
"Cap. at si Clerici. in Princip. de Jud.
x Rom. xiv.
y Cap. 10.