thought, without it break forth at least into words and decrees and preparations. But “ Injuriam facit, qui facturus est,” said Seneca. If it appears he was about to do a misehief, he is guilty; his secret was criminal: and that is it, wbich is punished as often as it can.

7. And this is more evident in the civil law", where the very thought of ravishing a virgin is punished. It is true, this thought was declared by the attempt or address to it: but because it was not consummate, it is evident that human laws bind to more than to or from the external action. The law that punishes the criminal before he hath acted the evil, punishes the internal principally: for in the address and first preparations nothing is done but the discovery of the thought; but when the thought is so discovered, and the action is not done, if the man be punished, it is not for the action, but for the thought. And to this purpose is that of Cicero, in his oration pro. T. Annio Milone,' “ Nisi forte, quia perfecta res non est, non fuit punienda: perinde quasi exitus rerum, hominum consilia legibus vindicentur. Minus dolendum fuit, re non perfecta ; sed puniendum certe nihilo minus :' “Not to punish the fault, because the mischief was not done, is as much as to say, that the laws are not avengers of evil purposes, but of evil events only. Indeed if the mischief be not done, we grieve the less; but if it was but intended, we punish it never the less."-And to this Seneca in his controversies gives testimony:"Scelera quoque, quamvis citra exitum subsederunt, puniuntur.”—The same with that of Periander : Μη μόνον τους αμαρτάνοντας, αλλά και τους μέλdovras, kókaSE, "Not only those that do, but those that would sin, are to be punished.”—And to this sense are all those laws which punish the affection, though the effect follows not, are to be understood *.

8. But this is also further manifest in the differences of chance-medley, manslaughter, and wilful murder; where the action being wholly differenced by the thought of the heart, proves plainly, that the thoughts also are punished by human

[ocr errors]

· Lib. Si quis non dicam rapere, cap. de Episcopis et Clericis.
1 Cap. 7. Wetzel, pag. 236.
" Diog. Laert. i. c. 7. n. 4. Longolii, pag. 103.

Cap. pro humani, Sect. Sacri, de homicidio, I. 6. et 1. quisquis, C. ad legem Juliam majestatis ; et cap. 1. de schismaticis, Sect. omnem, l. 6. et 1. Fugitivas, ff. de verborum Signif. 1. Divus, ff. ad leg. Cornel. de Sicariis.

laws, ever, when they are manifest. And if the divines and lawyers would distinguish in this question the punishment from the crime, the court external from the court of conscience, they would not err in this article. For although a man's thoughts without some external action are not punished, because they are not known; yet they could not be punished, when they are known, if they were not punishable and criminal in themselves even against the laws of man. And therefore when Ulpian* had said, “Cogitationis pænam nemo patitur:" Accursius adds, “Si statum in finibus cogitationis est:"-"No man can be punished for his thought;"—that is, if it proceeds no further; for then it is known to none but God.

9. Upon this account we find sometimes, in laws, commands expressly enjoining the internal action. Thus when the council of Lateran had complained of some clerks and prelates, that either wholly omitted their office, or said it negligently, it adds, “ Hæc et similia sub pæna suspensionis penitus inhibemus, districte præcipientes in virtute obedientiæ, ut divinum officium nocturnum pariter et diurnum, quantum eis dederit Deus, studiose celebrent pariter et devote :" viz. that “they say their office diligently and devoutly;" which because it is an act of the heart as well as of the outward man, it gives a clear evidence in this inquiry. But above all is that novel of Justinian", which the late Greek books have brought to light, it never having been noted by the Latin interpreters ;-in which the emperor commanded, that insolvent debtors, who, by misfortune, not by their crimes, were made poor, if they swore their insufficiency,were to be freed from all further trouble; and the creditors that refused to obey the edict, should pay ten pounds of gold; and dià uóvny évőúunoiv, " for their mere thought” of doing otherwise should be put to death.-I end this with the saying of the Jewish doctors: “Quicquid sapientes vetant palam fieri, id etiam in penetralibus vetitum est;” “Whatever the wise men forbid to be done in public, the same must be understood to be forbidden in your closet.” It was the saying of Rabbi Bachai.

* Lib. 18. ff. de Pænis lib. Fugitivas, ff. de Verbor. Signific.

y Norel, 133.


Human Laws, before sufficient Promulgation, do not oblige

the Conscience. 1. As the faults of subjects are not cognoscible without publication; so neither are the wills of princes. “Leges sacratissimæ, quæ constringunt hominum vitas, intelligi ab hominibus debent,” says the law”. But in this there is no difficulty: all that is made is in the assignation of the sufficiency of the promulgation. A Spanish lawyer, Selva, and he alone, —so far as I have heard or read, affirms the very solemn edition of it and declaration in the court or council to be sufficient. But as he speaks it wholly without reason, so he is to be rejected without further trouble. Others require one proclamation in one or more places, according to the greatness of the province or jurisdiction ; but it can never be agreed positively how much is enough. Therefore, so far as our consciences can be concerned in it, these following propositions are certain, and they are sufficient.

2. (1.) It is not necessary, that laws, in their promulgation, be so divulged, as that the notice of them reach every single subject. Not only because, in most laws, all persons are not concerned, but also because it is morally impossible; I mean, in a great province, where the laws are commonly of greatest concern, and the promulgation more to be regarded and more diligently endeavoured. For laws of men are not like the sun, searching into all corners; but as the law itself is such as regards that thing, which happens most commonly, so the promulgation is of a symbolical nature, and can arrive but to most persons.

3. (2.) In all princely and sweet government there must be such a publication of laws, as must be fit to minister to the public necessity and the public duty, that the laws be no snares, but piously intended, prudently conducted, sufficiently communicated, and reasonably exacted with abatement of all those deficiencies which are incident and unavoidable to mankind; so that,-if what be in council judged sufficient for promulgation, do not prove so in the event of things, and

i L. Leges, C. de Legib. et Constit. - Vide etiam authent. ut factæ novæ Cono stit. de Benefic. q. 22. 0. 14.

in the province,—the defect be put upon the insufficient publication, not upon the account of disobedience.

4. (3.) Be the publication legally sufficient, or not sufficient, it is certain that the conscience is not tied by the law, till it be known. I do not say but that the prevarication may be justly punished, because the law may be published as well as is morally possible, or prudently and civilly is required, and yet some may inculpably be ignorant of it. But be it so or otherwise, it is impossible that they, who know not of it,can obey; and if they cannot, they cannot be obliged: for that is no law, but madness, which obliges a man to that which is impossible.

5. (4.) The care and sufficiency of publication are wholly incumbent upon the lawgiver, not at all upon the subject; that is, the subject is not bound to seek after the law, but only to see that he do not turn his ear from it, or studiously decline it, or endeavour to be ignorant. For a law, though it be for good to the public, yet to the particular being a restraint upon our natural or political liberty respectively, no man is bound to seek his own fetters, or put the burden upon his own neck, but to wear it well when it is imposed: but to refuse to hear is the first act of disobedience; but to hear is the first instance of obeying; therefore till he hath heard, he is obliged to nothing. This hath no limitation or exception but this :-If the subject hath heard there is a law, he is bound to inquire after it; for then it is sufficiently published: the lawgiver hath done his duty. But before he hath heard, it is to him as if it were not: and that which is not, cannot be numbered, cannot be accounted for. The first is sufficient to oblige him; he is bound, because he knows the will of the lawgiver hath bound him: but then he must inquire for his own sake; for otherwise, he cannot perform his obligation.

6. (5.) Although, as to conscience, the former measures are certain, yet the legislator hath power to declare, when the promulgation is sufficient for the nullifying of all contracts intervening, or evacuating privileges, and changing all exterior events of law; because the being of all these depends upon the will of the prince, and of his law. Only when this is reduced to practice, in the matter of contracts, if they were valid by the law of nature, he that did contract, is obliged to stand to it, if the other requires it; but if it be his

own advantage, he is bound to quit it, if the other recedes and makes use of his advantage. For the law can tie him to suffer inconvenience for the public interest, but not to do any evil. Thus if Titius contract with Mævius to carry twenty tun of wheat from Sicily to Rome, and before the contract a prohibition of such contracts was legally published, and yet he heard not of it; he is bound to obey it: but if Mævius, who is like to be the gainer, stand upon his right of justice and natural consent, Titius must make him amends, but he must not transport the corn. But this is in case they be not both subjects of the same prince. And the reason of this is plain, because the stranger hath a natural right by justice and stipulation, but the subject hath a law upon him; therefore the other is not tied to quit that, but the subject must obey this; not to do an injury, for no law can oblige him to that; but to suffer one that is tolerable and is outweighed by the public advantage. But if they be both the subjects of the same law, the law that forbids one to make the contract, does also, by implication, forbid the other to exact that which is illegal. So that although the law cannot disoblige Titius from verifying a contract, that is valid in the law of nature; yet Mævius can remit his right, and the law can tie him to that.

7. This holds in all things, where the parties can give consent to the invalidating of the contract. But sometimes they cannot, and then the rule of conscience, is, .Standum est juri naturali,' Whatever was ratified by nature and religion must remain for ever. The council of Trent makes a law, that all clandestine marriages shall be null: she publishes the law, and declares it from a certain time to be valid. А poor vinedresser in the Valtoline hears nothing of it; but gets the daughter of his master the farmer with child after contract per verba de præsenti.' The law is urged upon him; the parties are both threatened, and are in that fright willing to recede. But they were told by a prudent confessor, that they could not consent to any such separation; and he told them truly. For in marriage there is a necessitude contracted by a law of nature, and not only a mutual right transmitted to each other, but there is a band of religion, a sacramental tie, or relation that God hath joined, and no man can put asunder. But until the contract is passed so far

« VorigeDoorgaan »