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 ...

§. 3. A contrary or ceasing reason.

RULE III. A law made for a particular reason, when the reason wholly ceases, does no longer oblige the Con∣science.

THe title of this §. implies a distinction of reasons considerable in this* 1.1 particular. For sometimes it happens that onely one reason dies, and there is no other change, but that the efficient cause of the law, from whence it had it's being, is dead. But sometimes it is more then so; for not onely the reason of the law is gone, but a nettle is risen up in the place of it, and that which was once profitable is become intolerable, and that which was just is now dishonest, and that which was righteous will not be righte∣ous still, but against the public interest. * Now when a contrary reason does arise there is no peradventure but the law ceases: and this is to be extended not onely to the case of injustice or impossiblity, but of trouble or of use∣lesnesse; that is, if the contrary reason makes things so that the law could not justly have been impos'd, or if it had been de facto impos'd, it could not oblige the conscience, then the conscience is restor'd to liberty and dis∣obligation. * But then this case must be manifest: for if it be doubtfull, the law retains her power; for it is in possession, and the justice of it is pre∣sum'd.

But if the reason of the law ceases onely,* 1.2 and no more, there is some more difficulty, for it may be the will of the Prince does not cease, and he intends the law should last for the support of his authority; and that will be reason enough to keep up a law that once was good and now hath no harm in it: and there ought to be a great reason that shall change a custome, though it be good for nothing; and where there was a law, a custome will easily be suppos'd, especially if the law was usefull and reasonable, as we suppose in the present case. And if the law did prevail unto a custome, and that it be not safe to change a custome, then though the proper reason of the law be ceas'd, there is another reason arisen in the place of it that will be enough to bind the conscience to obedience. For the stating of this question, it is still necessary that we yet first distinguish, and then define.

1. Some laws have in them a natural rectitude or usefulnesse in order to moral ends,* 1.3 by reason of the subject matter of the law, or by reason that the instance of the law is made an instrument of vertue by the appoint∣ment of law. 2. Others have onely an acquir'd rectitude, and an extrinsic end; that is, it was by the law-giver commanded in order to a certain pur∣pose, and beyond that purpose it serves for nothing. Thus when a Prince imposes a tribute upon a Country for the building of certain bridges, when the work is done, the tribute is of no public emolument. But if he imposes

a fast upon Wednesdays and Fridays for six moneths to obtain of God to remove the plague from a City or a Country, though the plague be gone before the end of four months, yet the fast may serve many other good ends.

Another distinction to be considered is concerning the cessation of* 1.4 the reason of the law, whether the reason be intrinsecal or extrinsecal. For sometimes the reason ceases universally. Sometimes it remains as to the generality, but is alter'd in the particular cases. So if a Superior com∣mands that none of his subjects shall enter into such a family where there are many fair women amorous and young, lest such a conversation should tempt them to wantonnesse; the general reason of the law remains, although Alexis be an Eunuch, and old Palaemon have a dead palsy upon him and can∣not be warm'd by such fires. The reason ceases in the particular, but abides still in the general.

A third thing is also to be observed,* 1.5 which hath in it some difference of case. Sometimes there are many parts of a law, and sometimes it is uniform and hath in it but one duty. That which hath parts and is a com∣bination of particulars may cease in one or more of them, and the rest abide in their full usefulnesse and advantage. And these and all the former may be uselesse, or their reason may cease for a time, and be interrupted, and a while after return: and in all these the reason may cease negatively, or contrarily; that is, the first cause may cease, or another quite contrary may come.

According to these distinctions, the cases and the answers are several.

1. If there be two ends in the law,* 1.6 an extrinsecal and an intrinsecal, though the extrinsecal be wholly and generally ceas'd, yet the law obliges for it's intrinsic reason, that is, when it commands an act of it self honest and vertuous. Thus if a Prelate, or a Prince, commands women in Chur∣ches to sit apart, and to wear vailes that they may not be occasion of quar∣rels and duels amongst yong Gentlemen; if it happen that the Duelling of Gallants be out of fashion, and that it be counted dishonourable to fight a duell, then that end of the law ceases; and yet because it is of it self ho∣nest that women should have a vail on their head for modesty sake, and be∣cause of the Angels, this law is not to cease, but to stand as well upon one leg, as it did before upon two. But this can onely be when Divine and hu∣mane laws are complicated, or at least when humane laws are mixt with a matter of perfection and Counsel Evangelical, or of some worthinesse, which collaterally induces an obligation distinct from the humane law.

2. If a law be appointed for an extrinsecal end,* 1.7 when that reason ceases universally, though there be an inherent and remaining worthinesse in the action, and an aptnesse to minister to a moral end, yet that law binds not unlesse that moral end was also intended by the law-giver. For that which was no ingredient into the constitution of the law, can have no pow∣er to support the law, for it hath nothing to doe with the law; it never help'd to make it, and therefore by it cannot be a law, unlesse by the legis∣lative power it be made anew. So that such actions which can be good for something of their own, and are not good at all for the end of the law-giver, can onely be lawfull to be done, but they are not necessary. There∣fore

when a law is made that every Thursday the subjects should goe to Church to Morning prayer, that they might in the public offices pray for the life of the Prince, if the Prince be dead that law obliges not; for al∣though going to Morning prayer is of it self good, yet if the Prince had no consideration of that good, but of his own, that good entred not into the law, and had no causality in it, and therefore was no part of the duty of the subject in relation to that law.

3. If the action commanded by law be in it self indifferent,* 1.8 when the reason of the law ceases extrinsecally, the whole obligation is taken away, because the act is good for nothing in it self, and good for nothing to the Common-wealth, and therefore cannot be a law. Thus there was an oath fram'd in the Universities that no Professor should teach Logic publicly any where but there, meaning that it should not be taught in Stamford, whe∣ther the Scholars made so long a recesse that it had almost grown into an University. But when the danger of that was over, the oath was need∣lesse, and could not oblige, and ought not to have been impos'd. In Spain a law was made that no man should cut any timber-trees: in a few years the province grew so full of wood that the reason and fear of the law was over; and it was more likely to passe into inconvenience by abundance then by scarcity, and therefore then it was lawfull for any man to cut some of his own. So if a law were made for ten years to forbid hunting of wild beasts, that some royal game which was almost destroyed might be preserved for the Prince, if in five years the wolves and lions were grown so numerous that there were more danger then game, the law were no longer obligato∣ry. For as Modestinus said well,* 1.9 Nulla ratio aut juris benignitas patitur, ut quae salubriter pro hominum commodis statuta sunt, nos duriore interpre∣tatione contra ipsorum commodum producamus ad severitatem; It is against reason that what the law decreed for the good of men, should be severely and rigorously expounded to their damage. And this is to be understood to be true though the reason of the law ceases onely negatively; that is, though the act doe still remain indifferent, and there be no reason to the contrary. To which this is to be added, that when the reason of a law commanding an action otherwise indifferent does cease universally, the very Negative ceasing passes into the contrary of it self: not that it does so in the matter of the action, for the action is still indifferent and harmlesse, but that it does so in the power of legislation: it does not so to the subject, but it does so to the Prince; that is, the subject may still doe it without sin, but without sin the Prince cannot command it to be done, when it is to no pur∣pose. Thus we find in the Legends of the Roman later Saints that some foolish Priors and Superiors of Convents would exercise the obedience of their Monks by commanding them to scrape a pibble, to fill a bottomlesse tub, and such ridiculous instances; which were so wholly to no purpose, that though the Monk might suffer himself to be made a fool of, yet he was not tied to it in virtue of his obedience, and the Prior did sin in command∣ing it. This ought to be observ'd strictly, because although it looks like a subtilty, yet it is of use in the conduct of this Rule of conscience, and hath not been at all observ'd exactly.

4. When the intrinsecal reason of a law does cease universally,* 1.10 the negative ceasing of the reason passes into a contrary; and if the action be not necessary, it is not lawfull. For actions which have in them an inter∣nal

rectitude have it so always, unlesse the case be wholly chang'd, and then it is become very evil. To restore that which is deposited with us is com∣manded because of the natural justice that is in the action; but when the reason of this ceases, that is, that it is not just to doe it, it is unjust, or un∣charitable: and therefore if you restore to a mad-man his sword to kill an innocent, you are unjust to innocence, and but aequivocally just to madnesse and folly.

5. When a law hath many parts,* 1.11 and is a conjugation of duties for several reasons, when one of the parts of the law does loose the reason of it wholly, though it be tied in the same bundle, and by the same tie, yet that part is slackened and obliges not, though included in a law which does oblige. The reason of this is the same with the former; onely this is to be added, that in this case it is not one law, but a conjugation of laws; it is not a single starre, but like a constellation, and particularly as the Pleiades, where one of the seven hath almost no light or visibility, though knit in the same confederation with those which half the world doe at one time see. * And the same also is the case in the suspension of a law, that is when the reason ceases universally and wholly, but not for ever: while the rea∣son is absent, the conscience is not tied to attend; but when it returns to ve∣rify the law, the duty returns to bind the conscience. But in this there is no difficulty.

These are the measures of conscience when the reason of a law ceases wholly and universally, that is, as to the public interest; but that which is more difficult, is when the reason of the law remains in the general, but it fails in some particular cases, and to particular persons: and what then is our duty, or our liberty?

The reason of the difficulty is,* 1.12 because laws are not to regard parti∣culars, but that quod plerumque accidit, saith Theophrastus; and therefore the private damage is supplied by the public emolument: and the particular pretences are not to be regarded, though they be just, lest others make excuses, and the whole band of discipline and laws be broken, Satius erat à paucis justam excusationem non accipi, quam ab omnibus aliquam tentari, said Seneca; It is better to reject the just exception of a few, then to en∣courage the unjust pretensions of all. And therefore subjects should for the public interest sit quietly under their own burden. For lex nulla satis commoda est; id modo quaritur, si majori parti & in summa prodest, said Cato. It is a just law if it does good to the generality and in the summe of affairs. And therefore if Cajus or Titius be pinch'd in the yoke, they may endure it well, when they consider the public profit.

But this were very true onely in case there were no other remedy;* 1.13 but our inquiry here being onely a question of conscience, which is to be judged by him that commands justly in general, and will doe no injustice in parti∣cular, and can govern all things without suffering them to intangle each other, the case will prove easy enough: for if God does not require obedi∣ence to the laws, when the reason of the law ceases in particular, of them I say in whose particular case the reason ceases, it is all that is look'd for. Now for this the conclusions are plain.

1. If the extrinsic reason of the law ceases in a particular case onely negatively,* 1.14 that is, so as no evil, grievous burden, sin, or danger be incum∣bent upon his person, the law retains her obligation and is to be obeyed; because in that case, although there be no reason in the subject matter, yet there is reason enough in the reverence of the law, and in a conformity to the public manners of the Nation. Thus when the law forbids a citizen to bear armes in the night because of frequent murders that have been done or are apt to be done by armed night-walkers; he that knows himself a peaceable man and that is resolv'd to offend no body is not bound by the reason of that law in his own particular, but he is bound by the law as long as the public is bound whereof he is a part: for if he have no reason to the contrary, but onely there is no reason for it in his case, it is reason enough that there is a law in the case, which is usefull to the public, and of great interest as to the communities of men. And therefore he that disobeys in these circumstances cannot be excus'd from contempt of the law: because though his obedience be causelesse, yet so is his disobedience, and this cannot be innocent, though that can; especially because though the obe∣dience be causelesse in his own particular in relation to that matter, yet it hath cause enough in it in relation to example and the veneration of the laws.

2. If the reason of the law ceases contrarily,* 1.15 that is, turns into mis∣chief; then though it ceases onely in a particular, in that particular the subject whose case it is, is free (from the law I mean, but not free to obey it.) Whatever we have vowed to religion or the Temple we are bound to perform: but if in the interval of the solution my Father or my nearest rela∣tive, or any to whom I am bound to shew piety, be fallen into want, or needs my ministery, I am bound to doe this first, and let that alone till both can be done: and the reason is, because I could not bind my self by vow to omit any duty to which I am naturally oblig'd: and therefore though the law that commands payment of vows be just, yet it must be always with exception of preceding obligations; so that if it be certainly a sin which is consequent to the obedience of any law, it is certainly no sin to disobey it.

3. If the general reason of the law remaining,* 1.16 in some particular cases it ceases contrarily, but not so as to introduce a sin, but a great evil, or such a one which the law would not have commanded, and the law-giver is supposed not to have intended, the law does not oblige the conscience of the subject in that case. For here is the proper place for equity. In the former case it is duty not to obey the law. Either then there is no equity but what is necessary and unavoidable; or if there can be any shewn or us'd by prudence and great probability, and in mercy, it follows that then it is to be us'd when the yoke pinches the person, though it does not invade the Conscience. And it is not to be suppos'd that a superior would have his laws burdensome to any one beyond the public necessity; it being as cer∣tainly in his duty to be willing to ease single persons in their private bur∣dens, as to provide for the common interest in their great and little politi∣cal advantage.* 1.17 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Equity is as much law as the law it self, it is as just as justice, onely that it is a better justice, saith Aristotle: it is not 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 the legal justice, but 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, a rectification and an amendment of it.

—Bonum jus dicis;

Impetrare oportet,* 1.18 quia aequum postulat, said he in the Comedy; It is fit that you prevail, you ask reason & equity. That's bonum jus; it is justice & mercy in a knot. Thus if a Church commands such ceremonies to be us'd, such orders, such prayers, they are to be observ'd when they may; but if I fall into the hands of an enemy to that manner of worship, who will kill or afflict me greatly for using it, I am in that case disoblig'd. For though this case be not excepted in the law, yet it is supplied by the equity and cor∣rection of the law: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, it is fit that when the law-giver hath commanded ab∣solutely and indefinitely, he should in cases of particular evil make provision and correct what was amisse or omitted by the law.* 1.19 For 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, saies Aristotle; if he had known of it before he would have provided for it before-hand: and because he did not, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, if the law-giver were present, he would use equity and give leave to the grieved subject to ease himself. And therefore since it is reasonable to sup∣pose that if it had been thought of, this very case would have been pro∣vided for in the law; and if the law-giver were present he would declare the law in that case not to oblige; it follows undeniably, that the law binds not any man to a great inconvenience in his own person, though otherwise, and as to the public, it be a just and a good law, of a remaining reason and a remaining obligation. In order to this consideration, that is usefull which hath been already said in the first Chapter of this book, in the second and third Rules.

4. If the reason of the law ceases in a particular,* 1.20 so that without sin it may be obeyed, and without any great and intolerable evil to the obedient, yet sometimes the law does not intend to oblige in the particular case, even when there is a little inconvenience, or but a probable reason to the con∣trary; and this is in things of small concernment. I should instance in ri∣tuals and little circumstances of Ecclesiastical Offices and forms of wor∣ship, in the punctualities of Rubrics, in the order of Collects, in the num∣ber of prayers, and fulnesse of the Office upon a reasonable cause or induce∣ment to the omission or alteration: for these things are so little, and so fit to be intrusted to the conduct of these sober, obedient and grave persons, who are thought fit to be trusted with the cure of souls; and these things are always of so little concernment, and so apt to yield to any wise mans reasons and sudden occasions and accidents, and little and great causes, that these were the fittest instances of this rule, if Superiors, for want of great manifestations of their power, would not make too much of little things. But the purpose and declar'd intention of all just laws and just governments is in these things to give the largest interpretation to persons of a peace∣able mind and an obedient spirit, that such circumstances of ministeries may not passe into a solemn religion, and the zeal of good men, their cau∣tion and their curiosity, may not be spent in that which does not profit. But the measures of practice in this particular must be taken from the manner and circumstances of the government, and the usual disposition of the law. In many cases an equity may be presum'd; but if it be explicitely denyed, it must not be us'd.

Question.

But upon the instance of these particular rules it is to be inquir'd,* 1.21 whe∣ther in these cases the subject is so quitted from the obligation of the law, that without further leave he may use his liberty, or must he require it of his Superior?

To this I answer,* 1.22 that if the case be evident, the subject may use his liberty: for if he should be tied to goe to his Superior, it is either to ask of him that the law should not bind him, or that he may declare that the law in his case does not bind, or to promulgate and publish the law in that particular. Not to ask leave that the law shall not bind, for of it self it ceases, and it was never intended to bind against equity and reason. Not for declaration, because the case is here suppos'd to be evident. Nor yet last∣ly for promulgation, because that is onely necessary in the sanction and re∣vocation of laws which depend upon the will of the Prince; whereas in this case the law ceases by natural justice and the nature of thing, and the reasons of equity.

2. But if the case be doubtfull,* 1.23 and it is not evident whether the par∣ticular case ought to be excepted in the general law, then we are to consider whether it be a doubt of fear onely or a doubt of reason, that is, whether it be nothing but an unjust fear, or relies upon just grounds; for some men may easily perceive in themselves a diffidence in any thing, not that they have reason to cause their fear, but because they dare not trust the greatest reason that they either have or hear. If it be onely a doubt of fear, then it is to be conducted by the rules given concerning a scrupulous Conscience:* 1.24 If it be a fear of reason, we are to manage it by the measures of a doubting Conscience. But if he supposes upon probable inducements that he is not obliged, then according to the nature of the probability we are to proceed. For if he believes it as probable that such a case ought not to be compre∣hended in the law, as supposing it to be a sin that in his case would be com∣manded, or too great a burden impos'd, and so to be beyond the power of the law-giver, then the subject may of himself be free, without recourse to his superior. The reason is, because to avoid a sin, or to doe a great charity to our selves, a probable reason is a sufficient inducement, provi∣ded a more probable reason be not oppos'd against it, we being comman∣ded, to avoid all appearance of evil. Now if this opinion be the more pro∣bable that by obeying the letter of the law in my case I should sin, it must needs appear to be an evil to doe it, and not to obey the law in this case does not appear to be an evil, as being the lesse probable: for if the opinions be equally probable, then the conscience is in doubt, and is to proceed by mea∣sures fitted to a doubting conscience: but when I say there is a greater pro∣bability and a lesse, the greater must carry it; and therefore the law is not to be obeyed, it being here suppos'd to be the more probable opinion that the obedience would produce a sin. So also in the case of a great burden or intolerable pressure, the presumption is for ease; and the law-giver is to be supposed good and gentle and reasonable; and besides, it is supposed as the more probable opinion that the law-giver hath not power to make a law or to oblige to so much inconvenience, and then the case is the same.

* But if he believes it as probable that to oblige in the present case was not in his will, but it is certain that it was in his power, then the case is so that the subject may without injustice or violence obey it; and therefore ought not to use his liberty by his own opinion, but by recourse to his supe∣rior that hath power to declare the intention of the law.

In the first case if it be easy and convenient to goe to the Superior,* 1.25 or that there is time enough and all things fitted, it were the surer way to re∣quire his sentence. But if there be not time, and the action urges by has∣tinesse, or necessity, or present opportunity, the liberty is as present as his need. But in the second case, (which is oftentimes harder to know then the first, it being more difficult to pronounce definitively concerning the will of the law-giver which is free, then concerning his power which is not free,) when it is onely probable that the law-giver is willing, it is not safe to venture upon the not-obeying, without recourse to the Superior. Be∣cause our innocence depending wholly upon his will, and there being no sin in keeping the law, we may safely doe this; but we cannot safely disobey without being more assured of his leave: and therefore if it be opportune and easy to have recourse to our competent Superior, it is worth our paines to goe and inquire; if it be not opportune, it is worth our stay till it be; for the securing our duty and the peace of conscience are interests much greater then the using of an unnecessary liberty.

3. But in these cases of uncertainty,* 1.26 when we are not confident of a just liberty by the force of reason and the nature of the thing, we may just∣ly presume that the Superior does not intend to oblige in all those cases in which he usually and of course dispenses; that is, when his dispensation is not of special favour, but of ordinary concession; because as in the first case it is suppos'd a gift, so in this latter it is suppos'd a justice. For example, A law is made to keep so many fasting-days. Maevius is a hard student, and feels himself something ill after fasting, and believes it will not be for his health; but yet things are so with him, that he can obey the law without great or apparent mischief, but yet he probably believes that the law-giver would not have him bound in this case. If he perceives that they that have recourse to the Superior in lesse needs then his, are ordinarily dis∣pensed with, then he hath reason enough not to goe to his Superior; for it is already declar'd that he does not intend to bind in his and the like cases. This is evident, and the best measure that I know in such cases. It is the surest, and the largest, and the easiest.

4. When the recourse to a Superior for declaration of the case hath in it great difficulty or inconvenience,* 1.27 though the cause of exception from the law be not very great, yet if together with the inconvenience of ad∣dresse to the Superior it make up an unequal burden, and so that the par∣ticular case seem very probable to be excepted, and that in it the legislator did not intend to bind; it is sufficient to consult with wise men and good, and by their advice and answers, as by extrinsecal causes of probability, or by any other just and probable cause of determination, to use our liberty, or to obey. The reason of this is plain necessity. Because we have no other way of proceeding, but either we must in this, as in almost all the other cases of our life, be content with the way which to us seems the more probable; or else if we were tied to make it secure, our lives and conditions

would be burdensome and intolerable, and the whole processe would be a snare and torment to a conscience: the Superior, who is to be consulted, it may be, not being within 40 miles of us; or when we come, it may be he is of difficult accesse, or otherwise imployed, and it will be impossible for many to be heard by him, if all in the like cases were bound to consult him; or it may be when we goe, we shall not be admitted, or if we be, it may be we shall not be eas'd unlesse we carry along with us the rewards of Divination in our hands, and we are poor; or it may be the matter requires hast, and cannot stay the leisure of the Oracle; and besides all this, the great∣est part of the actions of our lives are not so well conducted as to be deter∣min'd by the consultation of a wise man, but we doe them of our own head, and it may be of our own heart, without consideration; and therefore it is a prudent course to proceed this way: and he that in such cases ties the con∣sciences to proceed more then prudently, and thinks that prudence is not a sufficient warrant, does not consider the condition of humane nature, nor the necessities of a mans life, nor the circumstances of his condition, nor the danger of an unquiet and a restlesse conscience.

Upon occasion of this subject,* 1.28 viz. the alteration of humane laws by the interpretation and equity of reason, it is very seasonable, and very use∣full to conscience, to inquire whether by the similitude of reason the law may not as well receive advantage and extension, as well as the subject can receive liberty and ease. That is,

Question.

Whether the obligation of the law does extend it self to all cases that have the same or an equal reason, though the case be not comprehended direct∣ly in the law.

To this the answer is by several Propositions.

1. In laws declarative of natural right or obligation,* 1.29 the obligation extends to all things of equal reason, though they be not comprehended under the law. Thus because we are bound by the laws to pay honour and gratitude to our parents for their nourishing of us and giving us education, the same duty is to be extended to those persons who took care of us when our parents were dead, or that took us in when we were exposed; and children are to pay a proportionable regard even to their Nurses; and Moses was for ever oblig'd to Pharaohs daughter, because she rescued him from drowning, and became as a Mother to him. And the reason of this is, because in these things there is a natural rectitude, and a just proportion between the reason and the event; the reason of the thing is the cause why it was commanded. But in laws dispositive or introductive of a new obli∣gation there is some difference. Therefore,

2. In odious cases,* 1.30 and especially in penal laws, the extension of the reason does neither extend the obligation nor the punishment; according to that glosse in the Canon law,* 1.31 In poenis non arguimus ad similia, quia poenae non excedunt proprium casum. Punishments and odious burdens must not exceed the very case set down in the law: for if in the cases set down the Judges are to give the gentlest measure, it is not to be suppos'd that they can

be more severe then the letter of the law, which it self requires an abate∣ment and allay when it is capable: and as it is with Judges in the punish∣ments appointed by law, so it is with all the subjects in the obligation of the law. For in both these cases, it is to be presum'd that the mind of the law-giver was not to oblige or to punish more and in more cases; for si vo∣luisset, expressisset, is a good presumption in these things, he could as easily have spoken that as this, if he had intended both alike; and he would, be∣cause he knows that in odious things every one is willing to take the easiest part: and therefore that is a good warranty to presume of the mind of the law-giver; especially since the apportioning such a punishment to such a fact hath in it no natural necessity, but depends upon the will of the law-giver, and therefore is not to be extended by a participation of the reason, but by a declaration of the will.

3. When there is a defect in the law,* 1.32 and the public necessity or utility requires a supply, it may be supplied, and the obligation and the judge∣ments even in matters of burden can be extended by the similitude and pa∣rity of reason; for in this sense it is true which the lawyers say, Casus si∣milis expresso non censetur omissus. If it was omitted onely in the law, by the imperfection of it's sanction, or want of consideration, the Common-wealth must not suffer detriment, and therefore is to be help'd by the pa∣rity of reason. But then it is to be observ'd, that this is not wholly for the force and consequence of the reason of the law, but for the necessity and profit of the republic, and therefore the supply is to be made by jurisdiction rather then by interpretation:* 1.33 so saith the law, Is qui jurisdictioni praeest, ad similia procedere, atque ita jus dicere debet, The Praefect that hath ju∣risdiction must doe right by proceeding to the like cases: so that the jurisdicti∣on and power is the sufficient and indeed the adequate efficient of this sup∣ply; onely by the similitude of reason he that hath jurisdiction can take oc∣casion to doe right.* 1.34 Quando lex in uno disponit, bonam esse occasionem caete∣ra quae tendunt ad eandem utilitatem vel interpretatione vel certâ jurisdictione supplendi; The Law having made provision in one case, it is a good occa∣sion to supply other cases which tend to the same advantage; but this sup∣ply is to be made either by interpretation, if it can, or if it cannot, then by certain jurisdiction and authority. So that here are three things to be con∣sidered in this extension of obligation. The one is, that the law be de∣fective and need supply. The second is, that the supply be for the same utility and advantage which is in the expressed case of the law. And the third is, that if it cannot be by interpretation, that is, if it cannot be done by force of something contained in the law, but that there be a very defect in the law, it be done by the force of authority: for the similitude of rea∣son is not enough, and therefore either the supreme, or a jurisdiction dele∣gate with this power in special, is necessary. But where there is such a pow∣er, the way of doing it is procedendo de similibus ad similia,* 1.35 the occasion of supply must be taken from the similitude of the reason. But this I say is to be done either in cases of public necessity, or great equity and questions of favour. In other cases there are yet more restraints.

4.* 1.36 A similitude of reason (except in the cases now expressed) does not extend the law to cases not comprehended in the words and first mea∣ning of the law.* 1.37 For ratio legis non est lex, sed quod ratione constituitur, say the Lawyers, Every thing that is reasonable is not presently a law, but that is

the law which for that reason is decreed. And when a thing is propounded to a Prince, it is in the body politic as in the body natural, though the Un∣derstanding propound a thing as reasonable, the Will stil hath power to chuse or to reject it; and there may be reason for the thing in one regard, and rea∣son against it in another; and if the reason in both cases onely be alike, they are also unlike. Omne simile est etiam dissimile. For Titius contracts friend∣ship with Callinicus because their Fathers were fellow-Souldiers in the Par∣thian warre, and they lov'd well: but Titius refuses to contract the same league with Catulus, although the like reason was for him, his Father ha∣ving been in the same legion in the same warre: but Catulus was an ill-na∣tur'd man, and not fit to be entertain'd into such societies.

5. The Conscience is not bound to a greater duty then is express'd* 1.38 in the words and first meaning of the law by the proportion and commu∣nication of the reason, unlesse the reason be not onely alike, but be abso∣lutely the same in both cases; and not onely so, but that the reason was adequate to the law, that is, was the reason which actually and alone did procure the sanction of the law. When Caesar took in a town in Gallia Narbonensis, he destroyed the walls, and commanded they should not build any more walls: they consented, but cast up a great trench of earth; and he came and fir'd their Town, because although a trench of earth was ••ot in the words of the contract or prohibition, yet because Caesar forbad the rebuilding of the walls for no other reason but because he would not have it fortified, the law against walls was to be extended to trenches also for the identity of an adequate reason.* 1.39 To the same purpose is that of Quinti∣lian, Caedes videtur significare sanguinem & ferrum: si quis alio genere homo fuerit occisus, ad illam legem revertemur. A law against murder does com∣monly signify shedding of his bloud; but if a man have his neck broken, or be smother'd with pillows, or strangled with a bow-string, he shall be avenged by the same law that forbad he should be killed with a knife or dagger: for it was not the instrument or the manner which the law regard∣ed, but it wholly intended to secure the lives of the subjects.

6. Now this identity of reason must be clear and evident,* 1.40 or else it effects nothing; for in matters of doubt the presumption is for liberty and freedome. But it commonly is best judg'd by one or more of these following cases. 1. The relative and the correlative are to be judg'd by the same reason when the reason of the law does equally concern them, though onely one be named in the provision of the law. If the husband must love the wife, the wife must love the husband, though she were not nam'd in the law. For here they are equal. But in superior and inferior the reason cannot be equal, but therefore is onely to be extended to the proportion of the reason. A Son must maintain his Father that is fallen into poverty, and so must a Father a Son: but they are not tied to equal obedience; to equal duty they are, but not to equal significations and in∣stances of it. A husband must be true to his wives bed, and so must she to his; but she may not be admitted to an equal liberty of divorce as he is: the reason is, because the duty is equal, but the power is unequal; and there∣fore the consequents of this must differ, though the consequents of the other be the same. 2. The identity of the reason is then sufficient for the extension of the law when one thing is contain'd under another, a parti∣cular under a general, an imperfect under a perfect, a part under the whole.

3. When the cases are made alike by the effort of other laws. 4. When the law specifies but one case for example sake, the rest also of the same na∣ture and effect are comprehended. 5. When the cases are radicated in the same principle, and are equally concerned.

7. What is here said concerning cases and actions is also to be under∣stood not onely of persons,* 1.41 which cannot be separated from the considera∣tion of actions which are always personal, but of places and times, when the analogy and force of the reason or the words require it. Onely each of these is to observe their proper caution.* 1.42 Places are equally included in the meaning of the law, though they be not express'd in the words of the law, if they be within the jurisdiction of the law-giver, that is, within the capacity of the law* 1.43.* 1.44 But the caution concerning time is this, That although in laws declarative there is no difference of time, because there the present law is not the measure of our duty, but supposes the duty limi∣ted and prescrib'd before (nihil enim nunc dat,* 1.45 sed datam significat, saith the law in this case;) yet laws constitutive or introductive of a new right or ob∣ligation never of themselves regard or can be extended to what is past, be∣cause this is not in our power, and is not capable of Counsel or Authority; but they can onely be extended to the future: but the allay is this, for this is to be understood onely in precepts and prohibitions, but not in matters of indulgence and favour; for in this it is quite contrary: what the law hath forbidden in time past or present, and what she hath or doth command is to be extended to the future;* 1.46 but Cum lex in praeteritum quid indulget, in futurum vetat, When the law gives a pardon for what is past, and this par∣don relies upon a proper reason, there is no leave given for the future to doe so though the same reason shall occurre; for the pardon of what went be∣fore is a prohibition of what is to come hereafter.

8. When a law is made to take away an evil,* 1.47 it is to be understood also, and to be extended to all cases of prevention, and from an actual evil passes on to a probability. When Antiochus agreed that Ptolemy should not bring an army into Syria, he did not onely intend to remove the present hostility that he fear'd, but he intended also that he should not bring any at all, though for passage onely through his Country; because if his army were at all in Syria, he was in danger of suffering what by his treaty he de∣sir'd to prevent.

9. Whatsoever is said in laws is also true in promises and contracts:* 1.48 for these are laws to the contractors and interested persons, and to be mea∣sur'd by the same proportions. For when the adequate reason of a promise or contract is evidently extended to another instance though not nam'd in the contract, it must be perform'd and suppos'd as included in the stipula∣tion, and so still in succeeding and new-arising instances; and the state of things is not changed so long as that adequate reason remains for which the obligation was first contracted, though the thing be varied in a thousand o∣ther circumstances and accidents. But of this I shall have better opportu∣nity to speak in the last book.

33. I onely adde this one thing,* 1.49 That there is great caution to be us'd in determining our cases of Conscience by the measures of the reason of a law. For Non omnium quae à Majoribus constituta sunt ratio reddi potest, said

Julian. It will be hard to find out what was the reason of the laws made by our forefathers; and unlesse the reason be expressed in the law, our con∣jectures are very often so wild and far amisse, that they will be very ill mea∣sures of conscience or obedience.* 1.50 Et ideo rationes eorum quae constituuntur inquiri non oportet, alioquin multa ex iis quae certa sunt subvertentur. We must obey the law, and never inquire after the reason, unlesse the law of it self declares it: it is not good to examine, for by this means many clear laws are made obscure and intricate. Delicata est illa obedientia quae causas quaerit. The law-giver is mov'd to the sanction of the law by the reason of the thing, but the sanction of the law is to be the onely reason of our obedience.

Notes

• * 1.1

  1.
• * 1.2

  2.
• * 1.3

  3.
• * 1.4

  4.
• * 1.5

  5.
• * 1.6

  6.
• * 1.7

  7.
• * 1.8

  8.
• * 1.9

  l. nulla. ff. de legibas.
• * 1.10

  9.
• * 1.11

  10.
• * 1.12

  11.
• * 1.13

  12.
• * 1.14

  13.
• * 1.15

  14.
• * 1.16

  15.
• * 1.17

  Ethic. l. 5. c. 10.
• * 1.18

  ••••aut. Stich.
• * 1.19

  ubi supra.
• * 1.20

  16.
• * 1.21

  17.
• * 1.22

  18.
• * 1.23

  19.
• * 1.24

  Vide lib. 1. cap. 5, & 6
• * 1.25

  20.
• * 1.26

  21.
• * 1.27

  22.
• * 1.28

  23.
• * 1.29

  24.
• * 1.30

  25.
• * 1.31

  Gloss. in cap. in poenis. 49. de reg. jur. in 6.
• * 1.32

  26.
• * 1.33

  l. non possunt. ff. deleg.
• * 1.34

  l. nam. ff. eod.
• * 1.35

  Glossa in legem praedict.
• * 1.36

  27.
• * 1.37

  Albertus Bo∣logneti Bonon. in Tract. DD.
• * 1.38

  28.
• * 1.39

  in declam. Pa∣tris.
• * 1.40

  29.
• * 1.41

  30.
• * 1.42

  See Chapter 1. Rule 8. of this book.
• * 1.43

  See Chapter 1. Rule 8. of this book.
• * 1.44

  See Chapter 1. Rule 8. of this book.
• * 1.45

  l. haeredes. §. 1. ff. de Testam.
• * 1.46

  l. Cum lex. ff. de legib.
• * 1.47

  31.
• * 1.48

  32.
• * 1.49

  33.
• * 1.50

  ff. de leg.