« PoprzedniaDalej »
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 particular 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 notwithstanding the personal inconvenience, the law does still bind the conscience of the subjects in general; but if it be 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" upon another occasion, but in this very instance, is remarkable: "Custodiam virginitatis esse opus supererogationis, quod necessariam non habet conjunctionem cum fine publici commodi; et ergo non posse præcipi lege humana ;" "That virginity 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,
m Lib. 3. de Legib. cap. 30. n. 13.
is an unjust law, and does not oblige the conscience. Atdδάγμεθα ἀρχαῖς καὶ ἐξουσίαις ἀπὸ Θεοῦ τεταγμέναις τιμὴν κατὰ τὸ προσῆκον τὴν μὴ βλάπτουσαν ἡμᾶς ἀπονέμειν, 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 is founded upon a false Presumption, does not oblige the Conscience.
1. THE case is this; Francisco Biretti, a Venetian gentleman, 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 nakedness of her soul, and with flatteries mingled with the affrighting 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 m 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 m 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: but 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 Antonia and dwell with her. For the presumption, upon which this law was founded, was false; the congress did not prove a marriage, for it was never intended: the presumption was probable, but failed in this instance, and therefore in this case did not oblige the conscience. Conscience is to be guided 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 Ægina 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 burden of that law.-Don Joseph, of Carreras, a Spaniard, walking 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 and unmixed presumptions 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 distinguish 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 completed; yet if they have a mature judgment otherwise than the law did presume them to have, they are tied in conscience to verify this contract, if all these conditions were observed, which could make the act valid in the law of nature, 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 explication 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 "' 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 disinherited 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 informer; 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 whoever 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.
a Cap. 38. sect. 175. Harles, p. 116.