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 VI. Ignorance does always excuse the fact, or diminish the malignity of it, or change the kind and na∣ture of the sinne.

IGnorance according to it's several capacities,* 1.1 and the several methods of art and ways of speaking, hath several divisions. But all are redu∣cible to this in order to Conscience. Ignorance is either voluntary or in∣voluntary. It is vincible or invincible, that is, it can be helped or it can not. It is the cause of an action, or it onely goes along with it. And of these several ignorances there are many degrees, but no more kinds that are here fit to be considered.

1. The first sort of ignorance,* 1.2 which is involuntary, invincible, and antecedent, that is, is the cause of an action, so that the thing would not be done but by that ignorance, does certainly make the action also it self involuntary, and consequently not criminal. In this sense is that of the law,* 1.3 Errantis nulla voluntas, nullus consensus, They that know nothing of it, consent not. This is meant of ignorance that is involuntary in all regards, that is, such as is neither chosen directly nor indirectly, but is involuntary both in the effect and in the cause. Thus what fools and mad-men and infants doe is not at all imputed to them, because they have no understanding to discern good from evil, and therefore their appetite is not deprav'd or malicious which part soever they take.* 1.4 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, saith the law, according to the interpretation of the Greeks. Injury proceeds from the affection, and consequently we say that a mad-man or an infant if they strike or reproch anyone they are not cri∣minal, they have done no injury because they perceiv'd it not. Nec reputantur infantiae anni qui sensu carent, saith Pliny; The years of infancy come not un∣der the notice of laws and judges, of right or wrong, for they have no reason, that is,* 1.5 they use none. So Galen, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, All the scholars of Chrysippus constantly affirm that beasts and babies have no use of reason.

And Iamblichus suppos'd that the rational soul was not infus'd into chil∣dren before the tenth year of their age.* 1.6 But that is more reasonable which almost all wise men (excepting the Stoics) affirm, and is thus expressed by a 1.7 Gregory Nyssen, and his contemporaryb 1.8 Nemesius in the very same words; 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Although in infants there is no action or motion of reason, yet we say that they have a reasonable soul, for they manifest the use of it when they are growing up.

But this occasions a difficulty in this subject.* 1.9 For we see the ratio∣nal soul exercising it's operations in some sooner in some later; and as the body grows in strength and grandeur, so does the soul in the use of reason and powers of deliberation and choice.

Nam velut infirmo pueri teneroque vagantur* 1.10 Corpore, sic animi sequitur sententia tenuis. Inde ubi robustis adolevit viribus aetas, Consilium quoque majus, & auctior est animi vis.

And Hippocrates addes that the soul does always grow, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, A mans soul is born every day of a mans life, it always receives some increment. Now the question is How long shall infant ignorance or childshnesse excuse so far as that the actions they doe shall be reckon'd neither to vertue nor to vice?

To this it will not be possible to give a strict and definite answer,* 1.11 but a rule and a measure may be given. Possidonius said, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, The rational faculty is at first very weak, but it is great and strong about the age of fourteen years:* 1.12 and Plutarch saies that the Stoics affirm'd 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, about the second septenary, or the fourteenth year,* 1.13 they begin to be perfect: but Zeno said that from that year complete, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 it is perfect, that is, as to all capacities of reward and punishment. But in this there was great variety. For some laws would punish boys after twelve years, not before: so the Salic law,* 1.14 Si quis puer infra duodecim annos aliquam culpam commiserit, fredus ei non requiratur, A boy before he is twelve years old, committing a fault is not tied to make amends or composition.* 1.15 Servius upon that of Virgil, Alter ab undecimo tum me jam ceperat annus, saies, the thirteenth year is meant, because that was next to puberty; for, saies, he, the law judges of maturity not onely by years but by the habit and strength of the body. But though this be lesse by one year then that of the Stoical account, and more by one year then that of the Salic law; yet we find in the law of the Greeks and Romans that after seven years complete boys were punishable; so the * 1.16 Basilica,† 1.17 Michael Attaliotes and some others.

But this variety was not wholly arbitrary,* 1.18 but it was commonly esta∣blished upon reason; for the differences were made by the different nature of the crimes of which boys were not equally capable in every year: but al∣though in every crime some were forwarder then others, yet all were capa∣ble

of some sooner then of others. Spite and malice comes sooner then lust: and therefore if a boy after seven years old kill'd a man, he was liable to the lex Cornelia de Sicariis;* 1.19 but not so if he were a pathic and a correspon∣dent in unnatural lusts, as appears in Matthaeus Blastares and Leo; if he were under twelve years, he had impunity, quum aetas ipsa argumento sit nescire eum quid patiatur, said the Emperor, His age is an argument of his igno∣rance, that he knows not what he suffers. For in these things it was reaso∣nable that Galen said of Hippocrates, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, infancy is to be reckon'd untill youth, or a power of generation: and that was it which I observ'd before out of Servius, Bene cum annis jungit habitum corporis. Nam & in jure pubertas ex utroque colligitur. The strength of body must be suppos'd before you allow them strength of reason, that is, a power to deliberate and chuse those sins to which they cannot be tempted before they have natural capacities. But this, I say, relates onely to the crime of unclean∣nesse. Now because this was commonly the first of our youthfull sins, malice in infancy being prodigious and unnatural, which caus'd that advice of S. Paul, In malice be children; therefore wise men and the laws did usu∣ally reckon that age to be the first beginning of their choice as well as of their strength. But this rule is very far from being certain, and therefore S. Austin blames those that doe not impute any sins to boys before the age of fourteen;* 1.20 Meritò crederemus (saith he) si nulla essent peccata nisi quae membris genitalibus admittuntur, We might well doe so if there were no sins but the sins of lust: but they can steal sooner, and they can lie, and, as unnatural and as unusual as it is, they can be malicious, some sooner, some later, according to the basenesse of their disposition, their pregnancy and education.* 1.21 A. Gellius tells that the Decemviri, who wrote the laws of the XII Tables, ex caeteris manifestis furibus liberos verberari, addicique jusse∣runt ei cui factum furtum esset, They caus'd thieving boys to be whipp'd and given up to them from whom they had stoln; and if they cut corn by night and stole it, they were to be chastis'd by the discretion of the Praetor; which also Pliny notes.* 1.22 But then this also is to be added, that even in these things although they did not esteem them innocent, yet because their understanding was but little, and their choice proportionable, they inflicted but easy punishments:* 1.23 which Theophanes expressed by 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, they were beaten with thongs, or rods, or ferula's.

From hence we may take an estimate how it is in this affair as to the question and relation of Conscience.* 1.24 For then these wise men and wise law-givers did declare them punishable when they did suppose them crimi∣nal; though in the Sanction of laws they were to proceed by rule, and de∣termine 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 as things were most commonly. But then it is to be consider'd, that since they being to make a rule could not at all take in extraordinaries, and there would many particulars and hasty instances be pass'd before it could come to a just measure and regular establishment, we must therefore proceed something otherwise in the Court of Conscience. For,* 1.25 as Libanius speaking concerning boys, said, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, this is not a name of age that cannot sin and cannot be punished. But Anastasius Sinaita saies that some∣times God imputes sins to boys from twelve year old and upwards. But S. Austin confess'd the sins of his first years,* 1.26 the peevishnesse of his infancy, his wrangling with his nurses, his very envying for the nurses milk and fondnesses: this was indeed a greater piety then reason. But when he was a

boy and robb'd an Orchyard, he had reason then to be troubled for it. The sins of children are but little,* 1.27 but they are sins. Puerorum sensus in qua∣liacunque verba prorumpens, qui certè ad ea quae majores sapiunt penè nullus est. When boys give evil words, it is almost nothing. But because it is but almost and comparatively nothing, it is of it self and absolutely some∣thing; and we know not at what period of time any child first comes to the use of reason, and therefore neither can we tell when God will impute their follies; and when he does not impute their follies to damnation, it may be he will impute them so far as to cause a sicknesse or an immature and a hasty death. And therefore Parents and Tutors can never discharge their duty but by a coercion and strict restraint of children, from the very first begin∣ning of their being capable of laws, of the laws I mean of their parents, and even before that to restrain them from the material parts of any evil, even from evil words which they understand not. For when they once have learnt the sound they will quickly perceive the sense: and although we account their infant malices pretty and sportive, yet because we know not from what an early principle they come, nor how soon God will impute them, nor whether they will tend, nor what impression they leave, we should betimes exercise our legislative; and it is God's great mercy to chil∣dren that they can understand fear as soon as they can learn to sin, that their evil company and evil inclinations may not prevent the discipline of the parents, but that God and the good things of his law may get the first possession. And he that will let his children alone till they have 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, animum consilio ac ratione firmatum,* 1.28 a fixed and settled judgement, shall find evil habits fixt and permanent as the foot of a rock, and that good counsel will be too late, too easy a remedy. The summe is this; So long as they are ignorant, that is, so ignorant that they know not how to deliberate sufficiently to avoid a sin, so long their evil is not imputed, but together with their reason begins their vertue or their vice.

2. The second sort of ignorance is concomitant,* 1.29 that is, such which is really and actually conjoyn'd with the cause of the action, but it self is not the cause; for if the man were not ignorant, he would doe the thing never∣thelesse. Thus the boy that flung a stone at a bird, and hit his cruel step∣mother whom he knew not to be there, said he did not then design it, but the stone was well thrown. He that shoots an arrow at a stag and hits his enemy whom he resolved to kill when he could well doe it, but knew not at all that he was in the bush, hath an ignorance and a malice at the same time; and here the question is which prevails, the ignorance to excuse, or the malice to condemn. To this I answer, that the ignorance excuses that action, but not that man. He is not a murderer in that shooting, nor in the counsels and deliberation of that action; but for his mind and his malice distinct from that action, he is proportionably guilty. But if the man have no malice to the unfortunate man that is kill'd, then he is intirely inno∣cent, if his ignorance be innocent. The mind of the man is, and the action is; and if the ignorance were invincible and irremediable, then there is in∣nocence on all parts.* 1.30 Non consentiunt qui errant, saith the law. For there is in this concomitant ignorance the same reason as in the antecedent, so far as relates to that event, though not as to that action: the action was indeed voluntary and not procur'd by ignorance, but that event was; and that be∣ing the thing onely in question, is to be accounted for, just as those actions which are wholly produc'd by ignorance antecedent.

I deny not but the laws of wise Republics have principally regarded the mind and Counsel of him that sin'd,* 1.31 and that therefore the laws of the Romans under their Christian Princes did professe to follow the law of God in the matter of involuntary murder, and so did the Lombards and the Vi∣sigoths; yet sometimes this chance-medly was punish'd by a lesser punish∣ment: so we find in the laws of the Thuringians, Qui nolens sed casu quodam hominem vulneraverit vel occiderit, compositionem legitimam solvat. If a man unwittingly wounds or kills a man,* 1.32 si telum fugit potius quam jecerit, as Ci∣cero expresses the instance, if his arrow or weapon slipt from him, rather then was flung, he shall not be put to death; but yet neither shall he wholly escape, but must pay a fine appointed by law. And there is some reason for this. 1. Because the law must require the life and bloud of every of her citizens from whom it is taken, and the external event, of which she is the most competent judge, must as well as it may be repair'd. But 2. although it may appear that the event was not intended, yet it cannot so well appear whether the man did use all that diligence and precaution which wise and good men ought to doe to prevent mischiefs. And 3. something is to be indulged to the injur'd person, some consideration had of the grief and losse and the passion of the relatives of the slain person. And upon these con∣siderations God was pleased to appoint sanctuaries for such persons; which in true speaking is but a just remedy for an unjust calamity, and supposes that something was permitted in favour of the relatives of the unhappy man that died, something, I say, which yet was not always deserv'd of him that was in danger to suffer it.

3. The third sort of ignorance is the worst,* 1.33 it is that which is vin∣cible and voluntary, that is, procur'd by the will, is not the prime cause of it's actions but the effect, brought in on purpose to make way for an easy mischief with a colour and excuse. Of this there are two noted and dis∣cernible degrees: An ignorance crasse and dul, and introduc'd by negligence voluntary and observed more or lesse; and an ignorance affected, that is, chosen and delighted in, to serve evil purposes. Now concerning these degrees of this criminal ignorance it is true of them both that they bring guilt upon the head of the ignorant, according to their several proportions: but concerning the actions themselves which are acted by men in that state of ignorance and disorder, there is something of particular consideration. For we find our Blessed Saviour praying for pardon for his persecutors upon this very inducement:* 1.34 Father, forgive them, for they know not what they doe; that is, they doe not now know, for they are blinded and are in a state of ignorance: but that it was vincible and voluntary appears by those words of Christ,* 1.35 If ye were blind, ye had not sinn'd; but now ye say that you see, therefore your sin remains; and having eyes they see not, that is, they would not see, they did it ignorantly, and they would not cure their igno∣rance, for it was evident that Christ said and did enough infinitely to con∣vince them that he was the Messias.* 1.36 So also S. Paul's ignorance was very culpable, when in zeal and rage he persecuted the Church of God; but yet this ignorance lessen'd the malice of the effect, and dispos'd him greatly towards pardon. Upon these considerations, it is a worthy inquiry into that effect or influence which proceeds even from a criminal ignorance and undiscerning estate, and what it can operate towards pardon. The questi∣on then is, whether what is done by persons that know not what they doe, when that disability to know is procur'd by themselves, either by volun∣tary

negligence, or malicious purpose, is a sin as great as if it were done knowingly.

Question.

The case is this,* 1.37 Marcus Bibulus falls frequently into drunkennesse; when he is drunk he fights, and fornicates, and steals, and does (as it hap∣pens) all manner of impiety. Does his drunkennesse excuse, or does it exte∣nuate, or does it aggravate his fault?

The Greeks call'd these things 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉,* 1.38 that is 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Contention and every mischief that comes from wine, saith Hesychius; which when a man hath observed to be consequent to his intemperance, or hath been foretold of it by laws and wise persons, he may justly fall under the sentence not onely of drunkennesse, but of homicide, or incest, or whatever happens to be the vile daughter of so disgrac'd a Mother. Drunkards are very often proud and quarrelsome: and there∣fore to that of Solomon, Look not upon the wine when it is red, Rabba saith, Ne spectes vinum cujus finis est sanguis,* 1.39 Look not upon the wine whose end is bloud: and Eustathius saith that the nurses of Bacchus were painted 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, having snakes and daggers in their hands, to shew that drunkards were beastly and bloudy. And therefore if such persons could have impunity, there were no safety for the lives of innocent men, or the chastity of modest women. But they neither have, nor have they reason why they should 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉,* 1.40 said Aristotle; They that being drunk doe evil, are guilty of the injury. Be∣cause they are causes of their own ignorance: for they might have abstain'd from that excesse which caus'd them ignorantly to smite their Father. Pitta∣cus by a law caus'd a double punishment to be inflicted upon drunkards, one for the cause, and the other for the evil effect. The same also seems to be the sense of Plato both in his first and in his sixth book of Laws: but gene∣rally all the interpreters of Aristotle,* 1.41 the old Philosophers, the Mahumetans and the Christians and the Heathens, are perfectly of this persuasion, that the sins they doe in their drunken fit are perfectly to be imputed to them. To this purpose is that of Cicero,* 1.42 Nam qui se propter vinum aut amorem aut iracundiam fugisse rationem dicet, is animi vitio videbitur nescisse, non imprudentiâ. Quare non imprudentiâ se defendet, sed culpâ contaminabit, He that with wine or anger or lust looses his reason, cannot pretend igno∣rance or want of knowledge for his excuse, for by his own fault he is pol∣luted. And this is the sense of the Doctors of the Church. S. Basil saies drunkennesse is 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, so S. Chrysostome; vo∣luntaria insania, so S. Austin; 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, so Isidore Pelusiot: A vo∣luntary Devil, a chosen madnesse, a spontaneous fury. And the very same words are us'd by Seneca and Ammianus Marcellinus. And therefore the sinning man must not excuse him by his stupidity, and blame the wine, but himself onely;* 1.43 as Callicles in the Comedy convinc'd Dinarchus when he pray'd him to give him pardon,

Quod animi impos vini vitio fecerim;

he was not himself when he did it, it was his wine not he. The old man answer'd him,

—non placet In mutum quippiam conferri quod loqui non potest. Nam vinum si Fabulari possit, se defenderet: non vinum moderari, Sed vino solent qui quidem probi sunt: verum Qui improbus est, sive subbibit, sive adeo caret temeto, Tamen ab ingenio est improbus.

Blame not the wine; for wine does not govern a good man, but a good man the wine: But he that is wicked is wicked from within, whether he drinks or no. By these sayings of wise men we perceive that they held not the drunkard innocent even in those vilenesses which he did in his drunken∣nesse; and their reason was Philosophical, The effect from a voluntary cause is to be imputed to the first principle.

But Commonwealths have another interest to serve;* 1.44 they are to se∣cure the lives and good things of their citizens, and therefore they are by all means to effect what is necessary: and if drunken mischiefs were unpu∣nish'd, men might pretend drunkennesse for an excuse, and make it really to be the warrant of their licentiousnesse, their rapine, their lust or their re∣venge.

Nam si isthuc jus est,* 1.45 ut tu isthuc excusare possies, Luce clarâ diripiamus aurum Matronis palam; Post id si prensi simus excusemus ebrios Nos fecisse amoris causâ: nimis vile'st vinum atque amor, Si ebrio atque amanti impunè facere quod lubeat, licet,

said old Euclio to Lyconides. If drunkennesse may be our excuse, let us goe and drink drunk that we may rob the Matrons in the streets. And Manuel Palaeologus tells of one that had a mind to be reveng'd and put some affront upon a great man;* 1.46 and because he durst not when he was sober, he drank himself into an impudent fiercenesse, that he might first have boldnesse and then, as he hop'd, impunity. And therefore there may be great reason why the Civil laws of any Nation should punish the evil ef∣fects of drunkennesse not onely for the evil mothers sake, but for the secu∣rity of the citizens.

But in Theology and in the just estimate of things in order to Con∣science we are to speak and to proceed with some little difference.* 1.47 For if it be ask'd concerning the drunkennesse, or concerning the man, there is no peradventure but he is for these evil effects the worse man, and the drunkennesse is also the greater crime. The drunkennesse makes the in∣jury or the murder lesse criminal then if it were done with actual reason and choice, but these make the drunkennesse more intolerable and crimi∣nal. The man in chusing drunkennesse with or for these effects is much the worse man; but the crime is the voluntary drunkennesse, not the in∣voluntary rage and injury. And this appears upon these reasons.

1. Because by how much more the sense and reason is depraved,* 1.48 by so much the lesse the man hath pleasure in his sin. For if he be wholly mad or senselesse, his sin is wholly uselesse to him, it does him no present de∣light, any more then to a beast to push with his horns; which therefore is

not criminal because he cannot reflect upon his own act, he cannot chuse it for a reasonable consideration, he hath no will to entertain it. But if he be not so far gone, then there is some proportion of guilt, because there is of choice in the shipwracks of his reason and his will: and therefore Theo∣doret said,* 1.49 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Drunken∣nesse hath some reproof, and some pity; some punishment, and some par∣don. And Arrius Menander said that per vinum aut lasciviam lapsis ca∣pitalis poena remittenda est,* 1.50 They that sin by drunkennesse or passion may be punish'd, but not capitally; the same with that in Stobaeus, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Even in the follies and stupidities of drunken∣nesse there is something amisse besides the material part. But this is when there is something left by which he can understand and chuse some∣thing of the crime.

2. The mischiefs consequent to drunkennesse are therefore lesse mo∣ral evils,* 1.51 because they doe lesse moral mischief. For no man by his lust acted in his drunkennesse is made more lustfull, or by any act then done is promoted towards a vitious habit; for he knew not what he did, and re∣members it not: it is like Lot's incest, no more known after then before, and therefore it leaves no sediment or lees behind it; which shews it to have more natural vilenesse then moral, and therefore is nearer to pardon.

Et causa justa est,* 1.52 siquidem ita est ut praedicas, Te eam compressisse vinolentum virginem.

If the yong man was drunk when he lay with her, he hath some excuse, that is, as to his lust; but that is an aggravation of his drunkennesse, and he is not the more acquitted, when the aggravation of his sin and punish∣ment is onely plac'd upon the right cause.

3. If the consequent mischiefs of drunkennesse were formally those sins which materially they are,* 1.53 that is, if they were properly guilty of all that they ignorantly doe, then it would follow that because murder is worse then drunkennesse, and yet that murder was involuntary, some action that is involuntary would be more malicious then that which is chosen. If it be replied that those consequent acts are chosen because the cause of them is chosen, according to what is discours'd in the 4^th Rule of this Chapter; I answer, that this is true if drunkennesse were not an accidental cause of them: but these effects being but contingent to drunkennesse, and the effect of some other evil principle, which then prevails when by drunkennesse the mans guards are called off, therefore they cannot be intirely attributed to drunkennesse; and therefore if a man be surpris'd with drink, or is advis'd to it as to a medicine, if he falls into such consequent disorders, it would be hard to damne this man as a murderer or as an incestuous person, when he is so neither by his present, nor his antecedent choice. Therefore it is that Libanius saies that one who hath grievously offended another 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉,* 1.54 oftentimes is not punished when wine was his excuse; and the Scholiast upon the 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 saies that he that kills a man 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; with deliberation is 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 not to be pardon'd: If he does it by chance, he is free; but if by drunkennesse, he was by the Roman law banish'd for five years: and thus justice is preserved on all hands, that the drunkennesse should be punish'd more then drunkennesse, and the murder lesse then murder. For that is the worse for having such a daugh∣ter,

but this is more pardonable for having such a Mother.

But if the drunkennesse be but imperfect,* 1.55 if the consequent crimes be remembred and delighted in afterwards, (for that is a certain indication the stupidity was not extreme, nor equal to an excuse) then

〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉

such a drunkard is also all that which he acts and professes in his folly: a re∣membring drunkard, as he is but an ill companion, so if he falls into the horrid consequents which too often are the punishments of intemperance, hath no excuse. But if he chose drunkennesse on purpose that he might have impudence enough to doe a mischief, he committed the sin before∣hand, and was before he acted it guilty before God; and when he hath acted it, he is also guilty before men* 1.56. But unlesse it be in these cases, the actions done by him that understands not what he does are as the actions of a mad man or a fool. The sin was done before, and the mischief and the punish∣ment doe follow: but the guilt is in the cause, not in the effect that is in∣voluntary; though proceeding from a cause that was indeed voluntary, but not univocal and proper.

The sense of this question thus explicated agrees with the doctrine of the Fathers,* 1.57 who in the instance of Lot declare him criminal onely as to his drunkennesse,* 1.58 not to his incest. So Origen, S. Chrysostom, S. Austin: and S. Ambrose gives this account of the whole question; Sanè discimus vitandam ebrietatem, &c. We learn that drunkennesse is to be avoided, by which we are brought to that evil state of things, that we cannot beware of crimes. For those things which being sober we avoid, when we are drunk we ignorantly commit. And a little after; They who have been too free in drink∣ing wine, know not what they speak, they are like men dead and buried: ideoque siqua per vinum deliquerint,* 1.59 apud sapientes Judices veniâ quidem facta donantur, sed levitatis damnatur authores, Therefore what vilenesses they commit in their wine (meaning when they know not what they doe) for the deeds themselves so ignorantly committed they find pardon amongst wise Judges, but for their temulency a condemnation.

The result of these discourses is this.* 1.60 The vilenesses which are done by drunken and stupid persons unwittingly, are not of the same kind of which naturally they are and would be if the actors were sober: they are not the crimes of murder or lust or incest respectively, but circumstances of great horrour aggravating the drunkennesse, and deeply condemning the man. And yet, if the drunkennesse be not extreme, I mean the stupi∣dity and ignorance, if that be not such as to take away wholly the use of reason and moral choice, all the remaining portions of reason doe in their proper degree make the imperfect drunkard guilty of other perfect crimes, even of whatsoever he then shall act; and they shall for their own degrees of remaining choice be imputed to him as certainly as the drunk∣ennesse.

The same is the case of Inconsideration and Oblivion,* 1.61 whose effects are innocent upon the same accounts and no other. If they come in upon a ne∣gative principle, that is, begin and proceed upon a natural deficiency and an unavoidable cause, that which is forgotten, or that which is done by for∣getfulnesse

must be amended and repair'd as well as we can; but by a pre∣ceding morally-diligent care, and an after-revocation, nolition or amends, it may be kept innocent. This onely thing is to be interpos'd, that if by the precontract of a vitious habit there is ingenerated in our spirits and ex∣teriour faculties such a promptnesse and facility of sinning, that many of the acts of such a habit are done without advertency, as in vile and habitual swearing, every such action though passing without notice is criminal, be∣cause it is the product of the will habitually depraved; and there is no other cause why the actual consent of the will is not at it, but because it was not requir'd, but presum'd, and taken without dispute. A yong Lutenist dis∣putes and contends for every single touch of a string: but when he hath made it easy and habitual, he resolves to play a set of lessons, and every stroke is voluntary, though every one is not now actually consider'd.

Question.

To this §.* 1.62 of Ignorance belongs the question concerning Fraud and Guile. For if another man cosens and abuses my understanding, he places me in ignorance; and then it is worth our inquiry, What morality or what obli∣gation there is in those actions which are done by us so abus'd, so deceiv'd, so made ignorant, and incapable of judging rightly.

The answer relies upon the same grounds as formerly,* 1.63 with this advan∣tage, that he who is deceiv'd by the crafts of another, hath most common∣ly an ignorance that is very innocent; and then if that ignorance be wholly the cause of any action, the cause is innocent and so is the production. And upon the same accounts we are to judge concerning the obligation of pro∣mises and contracts made by persons in error and deception. 1. If the er∣ror be concerning the substance of the thing contracted for, the contract is naturally invalid, and obliges not at all. If Titius buy a horse, and Caius send him a Mule or an Oxe, there is nothing done, Titius hath made no bargain at all. If I buy a man-servant, and the Merchant sells me a mai∣den dress'd in mans apparrel, this makes the contract invalid; I made no bargain for a maid-servant, but for a man. When Jacob married Rachel, and lay with Leah, that Concumbency made no marriage between them; for the substitution of another person was such an injury as made the contract to be none at all: and unlesse Jacob had afterwards consented, Leah had been none of his wife. 2. If the error and ignorance be not in the sub∣stance of the contract, whatever else the error be, the contract is natural∣ly valid, that is, without a new contract and renewed consent it can stand; but if that error was the cause of the contract, which if the error had not been would not have been at all, then it is in the power of the abused per∣son to rescind the contract, and the fraudulent contractor is in Conscience bound to recede from all his ill-acquir'd advantages. The reason is, be∣cause he did injury to his neighbour, and plac'd him in evil dispositions and unaptnesse to chuse wisely, otherwise then God and the laws of nations and the common intention of contractors doe intend: and therefore although there was so much of the substantial requisites as could make a contract na∣turally valid,* 1.64 yet it was so ill, that all laws and intentions and tacit condi∣tions of contractors have thought fit to relieve the abused person, Dolo vel metu adhibito, actio quidem nascitur, si subdita stipulatio sit: per doli mali

tamen vel metûs exceptionem submoveri petitio debet: and the reason is given l. si dolo. 5. C. de rescindenda venditione; Si dolo adversarii deceptum venditionem praedii te fecisse Praeses provinciae aditus animadverterit, sciens contrarium esse dolum bonae fidei (quae in huju smodi contractibus maxime exi∣gitur) rescindi venditionem jubebit. In Contracts the honesty of the con∣tractors is principally to be regarded, and fraud is destructive of all honest intentions; and therefore the Praetor shall rescind such fraudulent bargains. 3. But if the error was not the intire cause of the contract, but that upon other accounts we would have bargain'd, onely we would not have paid so great a price, then the bargain is valid, and the Praetor cannot rescind it, nor the injur'd person revoke it; but the Civil law in this case did permit actio∣nem quanti minoris, that is, an amends for so much detriment as I suffer ap∣parently by the fraud.* 1.65 If Caius sells to Maevius sheep which he affirms to be sound, but they are indeed rotten, the law permits not rescission of the bargain, but forces Caius to restore so much of the price as the sheep were overvalued. And this is also the measure in the Court of Conscience. But this is to be understood in such cases where the fault of the vendible com∣modity cannot be discerned by the buyer, and where the seller did deceive voluntarily. For in other cases Caveat emptor is the rule of the law, let the buyer look to it, and it is also the rule in Conscience. The seller must not affirm the thing to be without fault, if he knows it vitious and faulty. But neither is he bound to proclaim the faults of his goods, if they be discer∣nible. And of this Cicero discourses reasonably,* 1.66 Num te emere coegit, qui ne hortatus quidem est? Ille quod non placebat proscripsit; quod placebat emisti. Quod si qui proscribunt villam bonam benéque aedificatam, non exi∣stimantur fefellisse, etiamsi illa nec bona est, nec aedificata ratione; multo mi∣nus qui domum non laudarunt: ubi enim judicium emptoris est, ibi fraus venditoris quae potest esse? Sin autem dictum non omne praestandum est, quod dictum non est, id praestandum putas? Quid vero est stultius quam vendito∣rem ejus rei quam vendat vitia narrare? Quid autem tam absurdum, quam si Domini jussu ita praeco praedicet, Domum vendo pestilentem? Who com∣pell'd thee to buy? The man that sold it did not (it may be) so much as de∣sire thee. He sold it because it did not please him; and because it did please thee, thou hast bought it. He that sets up a bill of sale and proclaims a house fair, and well-built and well-seated, hath not deceiv'd thee, though it be neither well-built, nor well-seated; because if it be intire for thee to make a judgement, he hath not deceiv'd thee. Much lesse if he hath not prais'd it. For if all that is spoken in the bill is not of necessity (viz. in order to the bargain or thy choice) to be verified, much lesse must that be perform'd or requir'd which was not spoken. But does ever any man cry stinking fish to be sold, or say, Come and buy a house that hath the plague in it? All this is great reason: Onely this is to be added, that such faults as cannot be discerned by the buyer, must be declar'd, or must be allowed for in the price: and the case is the same, if the buyer be a child, or a fool, or an ignorant undiscerning person;* 1.67 for no man must be made richer by the injurie and folly of his Brother. I know that in all the public contracts of mankind, that which all men consent in is, to buy cheap and to sell dear: but Christian religion, and the contempt of the world, and the love of spiritual interests,* 1.68 are sent from heaven, to cause merchandise to be an instance of society, and not a craft and robbery. 4. If the buyer be deceiv'd, but not by the seller, but by a third person, and that deception be the cause of the contract, the buyer may rescind the contract if he can; that is, he is

not in Conscience oblig'd to stand to it, if he can be quit in law: but he that deceiv'd him is bound to repair his injury if he have suffer'd any, or to break the bargain, if the goods be unalter'd. These things have no particular reason, but are evident upon the former accounts.

Notes

• * 1.1

  1.
• * 1.2

  2.
• * 1.3

  l. 9. ff. de jur. & fact. ignor. & l. 20. ff. de aqua & aquae pluvi.
• * 1.4

  l. 3. §. 2. ff. de injur.
• * 1.5

  de Hippocrat. & Platon. placit.
• * 1.6

  apud Stobaeu•••• in Physicis Eclogis.
• a 1.7

  de Anima.
• b 1.8

  de Nat. Hom. cap. 2.
• * 1.9

  3.
• * 1.10

  Lucret. l. 3.
• * 1.11

  4.
• * 1.12

  de Placit. philos. 5. c. 24.
• * 1.13

  Diog. Laert. in Zenone.
• * 1.14

  tit. 26.
• * 1.15

  in 8. Eclog. Virgil.
• * 1.16

  lib. 60. tit. 39.
• † 1.17

  tit. 71.
• * 1.18

  5.
• * 1.19

  Vide 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. ubi supra. in Epit. leg. tit. ult. num. 21.
• * 1.20

  lib. 10. de Ge∣nes. ad liter. cap. 13.
• * 1.21

  lib. 11. cap. 18.
• * 1.22

  lib. 18. cap. 3.
• * 1.23

  l. 1. §. impuberi, ff. de Senat. Silan. habena.
• * 1.24

  6.
• * 1.25

  Declamat. 21.
• * 1.26

  Quaest. 84.
• * 1.27

  Epist. 57.
• * 1.28

  Cicer. pro Cluent.
• * 1.29

  7.
• * 1.30

  l. 15. ff. de juris. l. Divus. ff. ad leg. Cornel.
• * 1.31

  8.
• * 1.32

  l. 5. Epist.
• * 1.33

  9.
• * 1.34

  Luke 23. 34. Acts 3. 17.
• * 1.35

  John 9. 41.
• * 1.36

  1 Tim. 1. Gal. 1.
• * 1.37

  10.
• * 1.38

  11.
• * 1.39

  Gemara San∣hed••in cap. 8. Ad Iliad. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
• * 1.40

  Moral. l. 1. ad Eudem. c. 34. & Ethic. ad Nicom. l. 3. c. 3, & 4. Vide etiam Po∣litic. 2. cap. ult. & Rhetor. 2. cap. 27.
• * 1.41

  Averroes in l. 3. Ethic. c. 5.
• * 1.42

  ad Herennium 2.
• * 1.43

  Tr••cul. Act. 4. Sc••n. 2.
• * 1.44

  12.
• * 1.45

  Aulul. Act. 4. Scen. 10.
• * 1.46

  Orat. 3.
• * 1.47

  13.
• * 1.48

  14.
• * 1.49

  qu. 59. in Genes.
• * 1.50

  in l. 6. de R•• milit.
• * 1.51

  15.
• * 1.52

  Aulul. Act. 4. Scen. 7.
• * 1.53

  16.
• * 1.54

  Declamat. 22.
• * 1.55

  17.
• * 1.56

  See Rule 4. of this Chap. Num. 2.
• * 1.57

  18.
• * 1.58

  Homil. 5. in Genes. Homil. 44. in Genes. lib. 2. contr. Faust. Manic. cap. 44.
• * 1.59

  lib. de Patri∣arch. cap. 6.
• * 1.60

  19.
• * 1.61

  20.
• * 1.62

  21.
• * 1.63

  22.
• * 1.64

  l. Dolo. 5. C. de inutilib. sti∣pulat. & instit. de exceptionib. in initio.
• * 1.65

  l. 13. ff. de acti∣onibus empti. in princ.
• * 1.66

  lib. 3. Offic.
• * 1.67

  l. in causae. §. Idem Pomp. ff. de minor. & l. item si. §. ult. ff. loc.
• * 1.68

  l. si volun∣tate. C. de re∣scind. vend.