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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 i 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.
. Cap. 38. sect. 175. Harles, p. 116.
Human Laws do bind the Conscience to or from an Act in secret,
as well as in public. 1. Some things are secret or private in their own nature, such as are only the prerogative of God to judge of; as the word of the mind, the thoughts of the heart, the desires and repudiations of the affections, the inclinations and tendencies to an object, love and hatred, the pleasures or displeasures of the fancy, acts of judgment and understanding. These God only knows, and he only punishes. Others are secret, but yet they are such only by accident, and for want of proof; and these also are more or less; for some are seen by one witness, and some by more; and they that are seen, either are brought to judgment, or not. Now according to the parts of these distinctions, this rule is, in several manners, to be verified.
2. (1.) Those actions which were done in secret, but under the observation of a few, when they are brought to judgment change their nature, and become public; and therefore are equally under the power of the law, as if they were done in the market. For in the law, that is called notorious, which is either declared in judgment, or proved by witnesses, or evident by the intuition of the fact. And that actions, in this sense, at first, secret,--are subjicible to laws, is clear by the very examination of witnesses, and the whole process of law. For the judge takes notice of no other notoriety: if a judge sees a thing done, he cannot punish it; he must witness it, and another punish it. All that is notorious to the judge, must be first secret, and then public; that is made manifest or notorious by witnesses and sentences of judges.
3. (2.) Some actions are secret, because they can be proved only by one witness. Now it is true, that, in some cases, one witness is sufficient, as in the case of treason; or, in case of confession, for his own witness against himself is as good as ten thousand, when it is so, it is manifestum' as before, and therefore the same thing is to be affirmed of it. But if it be a secret, so that it cannot be competently proved, it is true that the law does not punish it, but it fain would;
and, therefore, declares that the private action is a disobedience and transgression.
4. (3.) If the action be done wholly in secret, then indeed the criminal judges take no notice of it, any more than a man abiding in the city does of his country-house on fire before he knows of it; but as one is an unknown calamity to the man, so the other is an unknown transgression of the law. For that the thing is known or unknown, it alters the case as to the punishment, yet nothing at all as to the offence, the scandal only excepted and the example. Now that the law does intend to forbid such actions, it appears by the acts of scrutiny, and the proceedings against such as come accidentally to be discovered. If a suspicion do arise, or any probability, any fame or rumour, the law begins her process, somewhere by torture, somewhere by examination upon oath, and sometimes gives sentence upon conjectures. Now if to this it be replied, that “this is the beginning of publication, and the law proceeds only in proportion to its being public;' I answer, that it is true, she can proceed no otherwise : and therefore, if the question here had been, whether secret actions were punishable by human laws, I should have answered otherwise, and so the lawyers dispute it: but here inquiry being whether, the conscience being obliged, I am to say that the publication of it does not make it to be a sin; this reveals the action, and the law declares or makes it to be a sin : for a man is not hanged for theft, unless he be discovered; but if he be, then it is for his theft he is punished, not for his discovery. The consequent of which is this; that if the action be against the law, be it ever so secret, it is a sin; and here is the advantage of the wisdom and economy of God in the verification of human laws; he confirms the laws of men, and he binds in heaven what they bind on earth, and he also knows in earth what is done in the most secret corner, and judges accordingly.
5. (4.) But as for those things, which are secret in their own nature, such which are not only not known, but not cognoscible by human laws and judicatories,--the case is much more difficult; it being generally taught by divines, that no human laws have power to prescribe internal acts: and consequently that whatever we think or wish, so we do the thing that is commanded, the law of man is satisfied.
Question, Whether human laws can command or forbid inward acts ?
6. But having, as well as I could, considered the secret of this thing, I rest finally upon this account. It being certain and confessed, that the laws of man have power to constitute actions of themselves indifferent, into the order of virtue and vice, making that to be incest which before the law was not, and that to be theft which in other countries is lawful, and so in other instances;-if the law does change the action only so as to make it merely to be an instance of obedience or disobedience, then the law hath no power over internal actions : for man is not the lord of consciences and minds, and we are not tied to obey any man commanding an internal act; his judicatory here is not competent, his authority is not sufficient. For it serves no end of the public, and it hath no judicatory, no cognizance, and no interest: and it were as foolish as for a king to sit upon the strand and command the waters not to flow to his feet. But if the law of man have changed an action not only to an instance of obedience or disobedience, but placed it also in the order of some other virtue or vice, as by changing it to incest, or adultery, or chastity, or temperance, respectively, then the law of man hath power over the conscience even in the most secret act; not directly, and by the energy of its own power, but indirectly, collaterally, and by accident, by reason of the laws of God. The reason is plain: because it is not lawful to commit adultery, or murder, or incest, in our heart; the law therefore, that constitutes this action and makes it to be murder, does consequently oblige the conscience not so much as to desire it. " Voluntas facti origo est, quæ ne tunc quidem liberatur quum aliqua difficultas perpetrationem intercepit. Ipsa enim sibi imputatur, nec excusari poterit per illam perficiendi infelicitatem, operata quod suum fuerat;” so Tertulliano: “ The will is the original of action; and is not freed, when she is hindered from doing what she would. Her own act is imputed to her; for though no event succeeded, yet she did all her part.” Thus in the canon-law P, the inquisitor of heretical pravity is excommunicate, if, either out of hatred or hope of gain, he condemn the innocent,
p Clementin, 1. sect. Veram de Hæreticis.
o De Pænit. VOL. XIII.
or, for love and favour, absolve the criminal: upon which the gloss observes, that the superior can punish the sin of the heart, though it never proceed to action ;' and to this gloss Panormitan and Adrianus do consent. Now if it be objected, that`here is an action external complicated with the internal, and that the law proceeds against that, not against this;' I answer, that it is certain the law cannot proceed to sentence against the internal, unless it be, some way or in some degree, public: but that which I affirm is, that the law forbids the internal, or commands it, and that, in ease the action be placed in the rank of virtue or vice distinct from the mere obedience or disobedience, and this is a pregnant instance of it; for the condemning the innocent is, therefore, the more forbidden and the more condemned, because it is presumed to proceed from hatred. And therefore Cato argued well in behalf of the Rhodians, against whom it was moved in the senate that a war should be made, because they had some little light conjectures, that they were not well affected to them; and because some of the Rhodians had moved that they might help Perseus the king of Macedonia, in case peace could not be obtained for him; Cato made an oration in their behalf, affirming it to be unreasonable to punish them, because they had a mind once to have made a war. But this was therefore well said of Cato, because there was no proof that the Rhodians did intend it, and secretly or openly decree it. If they had intended it, it was penal; and when the intention had been proved, it might have been more reasonable to proceed to punish their breach of friendship. And thus the Rhodians themselves confessed, that the Romans warred justly with Perseus for intending a war against them; but he so intended it, that he did something towards it; but no city, no nation, would destroy them who did nothing towards the evil which they secretly intended. “Quis hoc statuit unquam, aut cui concedi sine summo omnium periculo potest, ut eum jure potuerit occidere, à quo metuisse se dicat, ne ipse posterius occideretur?” said Cicero"; “ He indulges too much to his fear, and destroys the public, tbåt will kill any man whom he is pleased to fear, or say that he would first kill him.”-And the reason of that is, because there can be no sufficient proof of the secret
9 Pro M. Tull.-Priestley's Cicero, vol. 7. pag. 963.