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 VIII. Humane laws of indifferent matter doe not oblige the Conscience of the Subjects out of the domi∣nions of the Superior.

EXtra territorium jus dicenti,* 1.1 non paretur, impune, is a famous saying in the Canon law,* 1.2 A man may safely disobey the law of his Prelate if he be out of the Diocess. And the reason is, because beyond his Diocess he hath no jurisdiction;* 1.3 and beyond his jurisdiction a Prince hath no power. Lex est jus proprium civitatis, saith the law; The law hath no power beyond it's own city. Thus anciently, in the Province of Canterbury the people did not fast upon S. Marks day; but if they were within the Province of York they were tied to the common law, or custome of the Church besides. Thus also it is in maritime places, especially in places of publick Trade and Merchandize: if the several Subjects should keep the several Laws of their own Princes, it would cause great confusion and disorder upon the place of Trade; and since it is certain that strangers must live by the laws of the Country where they sojourn, it is certain they are not tied to the laws of their own, because they may be contrary.

1. But this hath divers limitations.* 1.4 For 1. It does not hold in the substantial matters of religion, where the religions of the Country differ. It is not lawful for a Subject of England to goe to Mass in a forein Coun∣try; not onely upon supposition that the office is suspicious or to be blam'd by the measures of the Divine Law, but if the laws of our Coun∣try have upon other prudent and just considerations forbidden it. The sons of the Church of England professing under the government Episco∣pal may not lawfully communicate in the Huguenot Churches with them that believe Episcopacy to be Antichristian or unlawful, because this does relate to the evil and detriment of those laws and that government and that authority under which we still are tied. But in the ceremonial and ri∣tual part of religion, where the religion is the same, we are not tied abroad to our Country customes. A Subject of the Church of England may stand at the Holy Communion, or eat it in leavened bread, if he come into Protestant Countries that have any such custome: and the reason of this is, because the contrary would give scandal, to which our own laws nei∣ther doe nor can oblige abroad; and if any be offended at our different ce∣remonies at home, he must look to it, we are not concerned in any thing, but to obey our Superiour, and quietly to render a reason to our bre∣thren.

2. This Rule does not hold in such laws which are the specification of the Divine laws.* 1.5 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 law∣ful for them to doe it. The reason is, because she is not a Subject of Spain, but hath an habituall 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 Countrey and the Legislative is to give limits to the inde∣finite lawes of God; and the reason is that which S. 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 herown Subjects: and therefore if a Spaniard does dishonour the bed of an English Subject in Spain, it is law∣full there to kill him; because his own Princes law condemns him, and gives leave to the injur'd person to be Executioner. All these particulars rely upon the same reason.

3. This Rule does not hold,* 1.6 when though the Subject be abroad, yet the action does relate to his own Country. Thus it is not lawful abroad to coyn 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, Timo∣theus 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 doe so, but deliver Timotheus to the The∣bans, 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 punish'd. Being abroad is no

cuse 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.

4. If the action be something to be done at home,* 1.7 the Subject abroad is bound to obey the summons of the law. When Henry the second of England commanded all Prelates and Curates to reside upon their Dio∣ceses and charges, Thomas Becket of Canterbury was bound in conscience, though he was in France, to repair to his Province at home. The summe 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 omis∣sion is a sin: Qui non facit quod facere debet, videtur facere adversus ea quae non facit,* 1.8 saith the Law, The omission is a sin there where the action ought to have been done. But if the Law be nagative, Qui facit quod fa∣cere non debet, non videtur facere id quod facere jussus est. He that does what he is forbidden to doe is answerable to him who hath power to com∣mand him to doe it.

This Rule thus explicated is firm;* 1.9 and is to be extended to exempt or priviledged places, according to that saying of the Lawyers, Locus ex∣emptus habetur pro extraneo, He that lives in an exempt place, lives abroad.

By the proportions of this Rule it is easy to answer concerning stran∣gers,* 1.10 whether they be bound by the Laws of the Nation where they pass or traffick. For in all things where they are not oblig'd 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 Coun∣try (except in the cases limited) it is because the jurisdiction and dominion of their Prince goes not beyond his own land; and in such cases the place is more then the person: but therefore it must goe so farre, and be the per∣son 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 terrae, 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.

Notes

• * 1.1

  1.
• * 1.2

  Cap. 2. de con∣stitut. n. 6.
• * 1.3

  L. omnes po∣puli de justitia & jure.
• * 1.4

  2.
• * 1.5

  3.
• * 1.6

  4.
• * 1.7

  5.
• * 1.8

  L. Qui non facit ff. de regu∣lis juris.
• * 1.9

  6.
• * 1.10

  7.