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vernment 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 countrycustoms. A subject of the church of England may stand at the holy communion, or to 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 reason 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 dishonoured, 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 subject of Spain, but hath an 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 dishonour 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 subjects, 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, Timotheus 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 an arrow into his own country, though he bent his bow abroad, at home he shall find the string.
5. (4.) If the action be something to be done at home, the subject abroad is bound to obey the summons of the law. When Henry II. of England, commanded all prelates and curates to reside upon their diocesses and charges, Thomas Becket, of Canterbury, was bound in conscience, though he was in France, to repair to his province at home. The sum of all is this, A law does not oblige beyond the proper territory, unless it relate to the good or evil of it. For then it is done at home to all real events of nature, and to all intents and purposes of law. For if the law be affirmative, commanding something to be done at home, at home this omission is a sin: "Qui non facit quod facere debet, videtur facere adversus ea quæ non facit," saith the law; The omission is a sin there where the action ought to have been done. But if the law be negative, "qui facit quod facere non debet, non videtur facere id quod facere jussus est." He that does what he is forbidden to do, is answerable to him, who hath power to command him to do it".
6. This rule thus explicated is firm; and is to be extended to exempt or privileged places, according to that saying of the lawyers, "Locus exemptus habetur pro extraneo;" "He that lives in an exempt place, lives abroad."
7. By the proportions of this rule it is easy to answer concerning strangers, whether they be bound by the laws of the nation where they pass or traffic. For in all things, where they are not obliged by their own prince, they are by the stranger, and that upon the same account; for if they who are abroad, are not ordinarily bound by the laws of their country (except in the cases limited); it is because the jurisdiction and dominion of their prince go not beyond his " Lib. Qui non facit ff. de Regulis Juris.
own land; and in such cases the place is more than the person: but, therefore, it must go so far, and be the person what he will: yet, in the territory, he is under the law of that prince. He is made so by that place. It is 'lex terræ,' "the law of the land," in which he is: and "in the peace of that he shall have peace," as God said to the Jews concerning the land of their captivity.
Obedience to Laws is to be paid according to what is commanded, not according to what is best.
1. WHEN a Laconian was fighting prosperously, and had prevailed very far upon his enemies, it happened that a retreat was sounded, just as he was lifting up his hand to smite a considerable person; he turned his blow aside and went away, giving this reason to him that asked him why, "It is better to obey than to kill an enemy."-But when Crassus, the Roman general, sent to Athens, to an engineer, a command to send him such a piece of timber towards the making of a battery, he sent him one which he supposed was better; but his general caused him to be scourged for his diligence: and Torquatus Manlius, being consul, commanded his son not to fight that day with the enemy; but he, espying a great advantage, fought and beat him, and won a glorious victory, for which he was crowned with a triumphant laurel, but for his disobedience lost his head. It is not good to be wiser than the laws; and sometimes we understand not the secret reason of the prince's command, or the obedience may be better than a good turn, or a better counsel; which is very often ill taken, unless it be required. "Corrumpi atque dissolvi officium omne imperantis ratus, si quis ad id, quod facere jussus est, non obsequio debito, sed consilio non desiderato, respondeat," said Crassus in A. Gellius o.
2. Thus also it is in the observation of the divine commandments: when God hath declared his will, and limited our duty to circumstances and particulars, he will not be answered by doing that which, we suppose, is better. We must
• Vide A. Gellium, lib. 1. cap. 13. Oiselii, pag. 67.
not be running after sermons, when we should be labouring to provide meat for our family: for besides that it is direct disobedience in the case now put, there is also an error in the whole affair; for that which we think is better than the commandment, is not better: and this God declared in the case of Saul, "Obedience is better than sacrifice;" No work is better than that which God appoints.
3. This is to be understood so that it is not only left to our liberty, but it is also rewardable, for the subject to prevent a commandment, and to excel the measures of the law in the matter of a commandment, when to do so we know will be accepted, and is to the pleasure and use of the prince. Thus Astyages preferred Chrysantas before Hystaspes, because he did not only obey as Hystaspes did, but understood the mind of the prince, and when he knew what would please him, did it of his own accord. But then this is upon the same account, it is obedience, only it is early and it is forward.
4. This also is to be added, that if the choice of the subject, differing from the command of the prince, be very prosperous and of great benefit, the prince does commonly 'ex post facto,' allow the deed; that is, he does not punish it. P. Crassus Mutius and T. Manlius did otherwise; but they were severe and great examples. But when it is not punished, it is not because it does not deserve it, but because it is pardoned for if it should miscarry, it would not escape vengeance and therefore though the prosperous event be loved, yet it came in at a wrong door, and the disobedience was criminal. Δεσπότου μέν ἐστι μόνον τὸ ἐπιτάττειν· δούλων τὸ πείθεσθαι, Masters are to command, but the province of servants is to obey;" saith St. Chrysostom.
5. This rule is to be understood according to the intention, not according to the letter, of the law; for if the intention of it be that which is better, it is evident that is to be done which is better in the intention,-not that, which is commanded in the letter. But of this in the chapter of Interpretation of Laws.
P The passage, to which Bishop Taylor alludes, runs thus: Xpucávraç relvvv, ïpn, αὑτοσὶ πρῶτον μὲν οὐ κλῆσιν ἀνέμενεν, ἀλλὰ πρὶν καλεῖσθαι παρῆν τῶν ἡμετέρων ἕνεκα· ἔπειτα δὲ οὐ τὰ κελευόμενον μόνον, ἀλλὰ καὶ ὅ, τι αὐτὸς γνοίη ἄμεινον εἶναι πεπραγμένον ἡμῖν, TOUTO EmpаTTEY. Cyrop. viii. c. 4. §. 11. (J. R. P.)
OF LAWS PENAL AND TRIBUTARY.
It is lawful for Christian Magistrates to make penal Laws, not only pecuniary and of Restraint, but of Loss of Member and Life itself.
1. WHATSOEVER is necessary, is just; that is, that must be done, which cannot be avoided: and therefore the power of the magistrate in punishing the transgressors of their laws of peace, and order, and interest, is infinitely just; for, without a coercitive power, there can be no government, and without government there can be no communities of men; a herd of wolves is quieter and more at one than so many men, unless they all had one reason in them, or have one power over them. "Ancus Rex primus carcerem in Romano foro ædificavit, ad terrorem increscentis audaciæ," says Livy': "King Ancus seeing impiety grow bold, did erect a prison in the public market." When iniquity was like to grow great, then that was grown necessary. And it is observed that the Macedonians call death Aávoç from the Hebrew word Dan, which signifies a judge, as intimating that judges are appointed to give sentences upon criminals in life and death. And therefore God takes upon himself the title of a king and a judge, of a lord and governor; and gives to kings and judges the title of gods, and to bishops and priests the style of angels.
2. But here I will suppose, that magistracy is an ordinance of God, having so many plain scriptures for it: and it being by St. Paul' affirmed, that "he beareth not the
Nec quisquam sibi putat turpe, quod alii fuit fructuosum. Patercul. lib. ii. cap. 3. §. 4. Krause, p. 72.
The original words of Livy are,-"Ingenti incremento rebus auctis, quum in tanta multitudine hominum discrimine recte an perperam facti confuso, facinora clandestina fierent, carcer ad terrorem increscentis audaciæ, media urbe, imminens foro, ædificator." i. cap. 33. §. 8. (J. R. P.)
1 Tim. vi. 15. Psal. Ixxxii. 6.