Ductor dubitantium, or, The rule of conscience in all her generall measures serving as a great instrument for the determination of cases of conscience : in four books / by Jeremy Taylor ...

RULE IV. A law that is founded upon a false presumption, does not oblige the Conscience.

THE case is this;* 1.1 Francisco Biretti a Venetian Gentleman, full of amours, & us'd to vain and wanton addresses, courts Julia a Senators 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 pass'd further then he intended it, resolv'd 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 mean time Fran∣cisco pass'd into Sicily, and there married Antonia Peronetta a Sicilian La∣dy; her he lov'd, intended to make her his wife, and did so. Now the law presumes that after contract, their congress did declare a marriage, cap. Is qui fidem, and cap. Tua nos, de sponsal. for it supposes and presumes a con∣sent,

and yet withal says if there was no consent, it was no marriage. Here Francisco is condemn'd by the presumption, and reliev'd in conscience. For if he did not lie with her affectu maritali, but onely 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 pluri∣mùm, for the most part it is so that contract and congress doe effect as well as signify a marriage, the law did well to declare in the behalf of Ju∣liae: 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 Anthonia and dwell with her. For the presumption upon which this law was founded was false; the congress did not prove a mar∣riage, for it was never intended: the presumption was probable, but fail'd 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 then the best pre∣sumption or probability. * Besides this, when a law is made upon a sup∣position, and relies upon that alone, in case that should fail, it is to be pre∣sum'd that the Law-giver does not intend to bind. When the men of Ae∣gina were at warre 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 sav'd 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. Dom. Joseph of Car∣reras a Spaniard walking one night in Sivil, was taken by the Alcalde, 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 presum'd him to be the murderer, as it does aptly suspect such persons who at unseasonable times walk arm'd: he was accus'd, but finding friends was acquitted for his life, but sentenc'd to maintain the widow and chil∣dren 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.

But that there be no error in the practice of this,* 1.2 we must distinguish of presumptions. One sort is in matter of fact, the other is upon presup∣position of dangers usually arising: that is of justice, this of caution. The examples which I have already brought are all meer and unmixt presum∣ptions of fact; in which cases the rule does hold without exception. But in presumptions of caution it is otherwise. The law does irritate and eva∣cuate the contracts of minors, because they being weak and indiscreet, it is presum'd that they doe it foolishly whatever they doe; 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 judgement, and have craft enough to make a bargain, to consi∣der 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 doe 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 indivi∣sible, 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 in∣stances, yet it is true in most, and that 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 pre∣sumption, but a certain judgement; for it is certainly true that it is so most commonly; and it is presum'd 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 publick benefit, and consequently is a good measure to the conscience.

Onely this caution is to be inserted,* 1.3 That if a minor make a contract, as if a young man under 16, or a maiden under 14 make a contract of mar∣riage, although this is not valid in law till their years of consent be com∣pleted; yet if they have a mature judgement otherwise then the law did presume them to have, they are tied in conscience to verify this contract, if all those conditions were observed which could make the act valid ••n 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 ob∣lig'd: but this, although it be an essential consideration as to conscience, yet it is wholly extrinsecal to this Rule.

But there is one distinction more of use to the explication of this Rule.* 1.4 Laws founded upon presumption are either laws of favour or laws of duty. Those that are made in favour may be made use of onely when that supposi∣tion upon which it is founded is really true, but must not be us'd to the pre∣judice 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 onely son to be dead, declares a kinsman to be his heir. The son after∣wards appears; and by a true presumption that if his Father had suppos'd him living, he would not have disinherited him, is reliev'd against a false presumption which suppos'd him dead. And it hath left a stain upon the honour of Davids justice and friendship with Jonathan, that when he had listned to the false information of Ziba against his friends son Mephibosheth; and gave the land to the informer; he yet upon a right notice of the cause restor'd but half. For this cause, say the Doctors of the Jews, God divi∣ded his Kingdome, and gave the bigger half from his Grandchild Rehoboam to his servant. But if the laws be matter of duty, and enjoyn something that is good or useful to the publick, whether the presumption be right or wrong, they doe oblige: and the reason is, because the presumption, whe∣ther 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 publick Churches should be punished by a mulct of 20 li. a moneth, the fine of Recusancy, upon a pre∣sumption that he that is absent is so indeed, this law were as much incum∣bent 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 in∣ducement

to the law, the Conscience of those who are, and those who are not in the first presumption are equally oblig'd.

Notes

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