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 VII. Fear that makes our reason uselesse, and suffers us not to consider, leaves the actions it produces free from crime, even though it self be culpable.

THe case is this;* 1.1 Roberto Mangone a poor Neapolitan travelling upon the Mountains to his own house, is seized on by the Banditi, a pistol is put to his breast, and he threatned to be kill'd unlesse he will be their guide to the house of Signior Seguiri his Landlord, whom he knows they intend to rob and murder. The poor Mangone did so: his Lord was murder'd, his goods rifled and his house burned. The question is, whether Mangone be guilty of his Lords death.

To this the answer is easy,* 1.2 that Mangone is not innocent; and though he did not consent clearly and delightingly to Seguiri's death, yet rather then die himself he was willing the other should. No man is desirous in a storm to throw his goods into the sea, if he could help it, and save his life; but rather then loose his goods and his life too, he heaves them over∣board. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉,* 1.3 said Aristotle, These kind of actions are mixt, but they have more of spontaneity and election in them then of constraint. No Christian remaining a Chri∣stian is willing to offer sacrifice to Daemons, or to abjure Christ, if he be let alone: but he that in time of persecution falls away, not changing his heart, but denying his profession, this man is not excus'd by his fear, but betray'd by it.* 1.4 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, There are some things to which a man must not suf∣fer himself to be compell'd by any force, but he must rather die then doe them. And because there are some things 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, which are insufferable to humane Nature, and therefore there is in laws as∣sign'd a certain allowance of fear qui potest cadere in fortem & constantem virum, that is, in the case of danger of suffering the extremest evils, and our obedience to humane laws is excus'd in such cases, because no man is ordinarily bound by the laws to suffer a greater evil in keeping the law, then is threatned by the law it self to him that breaks them; therefore the law allows an omission of obedience in the fear of the greatest evils, as I have already explicated* 1.5. But in Divine lawes it is otherwise, because no man can threaten or inflict on another an evil comparably so great as God does on them that break his laws; and therefore the lesse fear cannot be a reasonable excuse against a greater; and in all cases, the fear of man must

yield to the fear of God. And therefore in the matter of a Divine Com∣mandement, no fear of temporal evil is an excuse or warranty. Because we are taught to despise poverty and pain and death, and to doe all this chearfully and gloriously. And therefore this case of Conscience and it's whole dimensions are quickly measur'd.

But this is onely in Negative commandements,* 1.6 for they can never be broken with innocence upon what pretended necessity or violence soever. But in positive Commandements the case is not so clear, but fit to be more consider'd: But it will quickly also come to an issue, if we distinguish o∣missions from commissions. For no man may upon any pretence doe anything against a positive Commandement. He may omit to visit a Christian in prison, if he fears he shall loose his life in the visitation, or be threatned with any great calamity; but he may not doe him any injury or oppression to save his life and liberty.* 1.7 But I have to this also given particular answer upon another occasion. That which I am to adde here is this; There is no peradventure but the obedience to a positive commandement, till it be plac'd in it's own circumstances and requir'd here and now and so, will give place to so just a cause of deference and stay as is the securing our selves against a great fear. For where God hath not requir'd us in particular manner to doe a duty, he hath requir'd it in a very particular manner to preserve our selves. But when the case is so, that the particular is requir'd, no fear of man can hinder us. For in all things God is to be preferred. And therefore it is so rarely well order'd that unlesse it be in extraordinary cases, as the Apostles preaching the Gospel, their open confessions of faith, their declaring against the religions of the world at that time, for which they had special commands, and were to doe them and not to fear the fear of men, there is scarce any positive law of God but either it may be per∣form'd by an internal suppletory, by a desire and willingnesse and endea∣vour, or else will be sufficient to be done in the article of death, that is, then when we need not fear the worst that man can doe unto us. Thus it is in the susception of the Sacraments; from the actual susception of which by a great and just fear if we be frighted, we cannot be hindred from the desire and spiritual and most effective susception of them: and from the actual if we be by a just fear delayed (though the case cannot often happen) yet it is generally suppos'd that if they be done before our death, the commande∣ment is obeyed, if the delay was not on our part; and at our death no new fear of death can be a just excuse. However, if it or any thing else be po∣sitively and determinately requir'd in circumstances, we must not be afraid of them that can onely kill the body; or if we be, the fear and the omission are both criminal, and this is not excus'd by that.

But if in these or any other cases the fear be a surprise,* 1.8 sudden, and violent, and impetuous, that is, such that our reason is invaded and made uselesse, such as by a natural effort disorders all our faculties, such as that of Arachne in Ovid,

Quid mihi tunc animi misera fuit? anne quod agnae est Siqua lupos audit circum stabula alta frementes? Aut lepori, qui vepre latens hostilia cernit Ora canum, nullos audet dare corpore motus?

such a fright as a hare or lambe are in when they are pursued by dogs and ••oxes,

Occupat obsessos sudor mihi frigidus artus,* 1.9 Caerule aeque cadunt toto de corpore guttae,

when nature is in a lipothymie, and our strengths are made extravagant, when we can doe any thing in flying and nothing at all to consider; then our understanding cannot deliberate, and then our will does not consent, and then the effect is pityable but not criminal, but the fear it self possibly may be both. For sometimes our fear may be so great, that it fills all our fa∣culties, and then there cannot be any deliberation; for that must be at leisure, and must look upon two objects. Statius well describes this kind of fear in the similitude of a hunted stagge.

…..qualis cum cerva cruentis Circumventa lupis,* 1.10 nullum cui pectore molli Robur, & in volucri tenuis fiducia cursu, Praecipitat suspensa fugam, jam jamque teneri Credit, & illusos audit concurrere morsus:

she hath no courage, no confidence, no hope of any thing; she dies if she stayes, but she cannot stay to consider so long; and when she runs, she dies too, and she hears the wolf at her ear, and sees him with her eye, and feels the teeth in her heart, and dies with fear. In such cases as these we are as men without reason, and therefore to be judg'd accordingly. I have heard of a Trouper who in the late sad warres of England being alarm'd, was so affrighted that he bridled his Comerade instead of his horse: and in the last inroad which the Turks made into the Empire, a German carrier was so affrighted with the noise of Turkish horses coming, that he knew not how to make use of his own to fly away, but deploring his condition that his horse being loaden could not run fast, had not the reason left him, though he had time, to throw off his pack, but staid in that amazement, till the prisoner of fear became a slave to the Turks. What a man does in such a case, no equal estimator of things will impute to choice or malice. He that flies from a lion pursuing him, and in his affrightment runs into a River, is not criminally guilty of his own death. He runs into one death before another, but prefers it not: for if he were in the same fear of drow∣ning, he would leap ashore though a Lion did stand there expecting of a prey.

Concerning degrees of fear which are lesse,* 1.11 such which leave us in a power to consider and deliberate, they may lessen the malice of the crime to which they drive, but cannot make the fact innocent. He that is taken by a Tyrant and an unjust power and put amongst the troups, is not innocent though in that fear and against his will he fight against his Prince. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, said Dio Cocceius, They went willingly to warre, if at least they may be said to be willing who are constrain'd by fear. It is an unwilling willing∣nesse, and therefore it is a sin almost against their will. For in despite of such a constraint,* 1.12 a man may use his liberty; as Lucian saies of the yong man, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, He did not marry, but though his Father forc'd and compell••d him, yet he refus'd.

The same is the case of Superstition,* 1.13 which is an excessive and inordi∣nate fear in the matter of religion. If the fear be supreme and distracting, the effects of it are very pityable; but criminal onely in that degree in which

it is vincible and can be subdued by reason. When Michael Stifelius a Ger∣man in Luther's time had affrighted the people with a confident and terrible prediction of the day of Judgement within a few days to be revealed, the poor affrighted people left off their daily labours, and took care of no du∣ty for this life. This omission at another time would have been very cri∣minal; but now their superstitious fear did alleviate it, if not wholly take it away. But in this there is nothing particular, save onely that the causes of fear in this case are worse then in other things; but the effects themselves are not commonly very bad.

But this passion of fear hath in it yet more difficulty in relation to humane contracts and obligations,* 1.14 which can be evacuated and declar'd ne∣ver to have oblig'd if they commenc'd with fear. For upon this account some pretend contracts of marriages, absolutions from Ecclesiastical cen∣sures, testimonies in testamentary causes, vowes, donations, sentences, re∣signations of Benefices, constitutions of Proctors, election to offices, and oaths of obligation to men, and promises, not to oblige, if the promiser or contractor was constrained by fear.

But to all these the answer will be the same,* 1.15 for they are all discernable by the same reason. If the fear was such that it might affright a wise and a constant person, the law judges the contract to be null, and not to oblige in law, which is the measure of contracts and legal obligations. But al∣though the law declares many particular cases, in which the fear does annul the contract, and in such cases ordinarily there needs no further inquiry; yet because many cases happen in which the law hath not regularly declar'd her sentence, by that measure which the law goes by, we may without trou∣ble determine our selves. The rule therefore is this; When any evil threat∣ned is so great, that to suffer it is more intolerable then to doe the thing to which you are compell'd, there the fear is suppos'd great enough to nullify the contract. If a rich person be threatned, that he shall be forc'd to pay a hundred pound, or marry the oppressors daughter; if he promises to marry her he is oblig'd, and that fear and that threatning shall not prevail to eva∣cuate his promise. Because he that so threatens intending but an evil that is very tolerable, if the marriage be of worse mischief, he did not chuse it out of fear; for he that does so, chuses the lesse evil to avoid a greater, not a greater to avoid a lesse:* 1.16 so S. Austin observes, Neque enim dici solet quispiam voluntate fecisse, siquid fecit invitus; quanquam si subtiliùs advertamus, etiam quod quisque invitus facere cogitur, si facit, voluntate fecit: sed quia malit aliud,* 1.17 ideo invitus, hoc est, nolens, facere dicitur; and Simplicius to the same purpose, quia licet inviti agamus, tamen sic agere eligimus, It is in∣deed against our will; but when things are in an evil state, we chuse the least. If therefore he chuses that which he saies is a worse evil, he cannot pretend it is for that fear; and consequently it must be upon some other motive, something of his own; and if it be, it will verify the contract. Titius finds Caius at an advantage with a Watch & a Ring about him of no great value; he threatens to take them from him, unlesse Caius will promise the next day to bring him twenty talents. Caius promises it, and therefore is oblig'd, for he cannot say, he was compell'd. For no lesse violence can constrain us to suffer a greater, because that is far more eligible then this. And there∣fore the law calls nothing a just cause of fear, but the fear of the greatest evils, as death, torment, dismembring, intolerable disgrace; that is, such

things which to avoid a man would suffer any evil that is lesse. Now be∣cause in contracts we intend some advantage to our selves, real or imagina∣ry, and in contracts effected by a great fear we can design none but the avoiding of a greater mischief, the law and right reason wholly attribute it to fear, and therefore annul the contract. Martial's case is pertinent to this inquiry,

Quod si me tonsor,* 1.18 cum stricta novacula supra est, Tunc libertatem divitiasque roget, Promittam: nec enim rogat illo tempore tonsor; Latro rogat: res est imperiosa timor. Sed fuerit curvâ cùm tuta novacula thecâ, Frangam tonsori crura manusque simul.

If a Barber when the rasor is upon my throat contracts with me for twenty pound, if I fear he will cut my throat if he be denied, I promise to him as to a thief, with whom whatsoever contract I make in my intolerable fear, no law of man does verify it. But Martial as to his instance was no good Casuist.

For if it be inquir'd whether I am oblig'd in Conscience to keep my promise to a thief or a bandito,* 1.19 which I made to save my life; I answer that I am. Because he being an outlaw and rebell against all Civil laws, and in a state of warre, whatever you promise to him, you are to understand it ac∣cording to that law under which then you are, which is the law of Nature and Force together. So that you cannot be guarded by the defensative of the Civil laws, nor is your contract under it's guard and conditions. In contracts under the protection of Civil laws, we are to goe by it's mea∣sures, and the contract is good or bad accordingly. But when we have no measures but what we can get of our selves, our contracts are to begin and end between our selves, and by our own proportions. But in law no man is suppos'd to have consented, but he in whose power it is to dissent. Si vis scire ut velim,* 1.20 effice ut possim nolle: and every contract must have 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, as Damascen calls it, a desire free from all bond. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. If there be force and a sad necessity in it, it is a calamity ra∣ther then a contract; and therefore the laws intend to defend and rescue us from the oppression.

I am to adde one caution,* 1.21 That no reverential fear, let it be never so great, and the person never so timorous, so that the use and ministeries of reason be left, can excuse a sin, or nullify a contract. The reason is given by Aristotle,* 1.22 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, The Fathers Empire hath in it no violence and no coaction. And Heliodorus Prusaeus in his paraphrase saith the same thing, that the commands of Pa∣rents, or such whom we reverence and fear, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, have not such force as to compel: not but that we are to obey; but that what we doe out of reverential fear to them is not compell'd, but voluntary and chosen.

What is said of Fear,* 1.23 is not true of other passions, lust and anger, or whatever else is productive of those effects which use to make men asham'd, and disorder all their interests. 1. Because these passions are seldome of that nature and degree of violence as to take away all powers of delibera∣tion, and therefore they are but seldome fit to be pretended in excuse of any

action. 2. They are commonly the true Mothers, the univocal parents of their productions, otherwise then it is in fear and drunkennesse and igno∣rance; for these produce things of a nature different from their immediate principles, as drunkennesse produces effects of anger, of lust, &c. that is, it is the occasion of them, not the proper Mother. But lust produces lust, and anger sends forth angry words, and spitefull actions, and resolutions of revenge. 3. The products which come from these passions are so very far from being rendred involuntary, that by these passions they are made most delightfull, and without them they could not please at all. 4. Whenever they prevail to any violence or extremity of degree, it is by an increasing will; not by weaknesse and natural infirmity, but by a moral state of infir∣mity, that is, a state of sinfulnesse. 5. It is not in these as it is in fear, or vincible ignorance, that what is voluntary in the cause may be involuntary in the effect: but in these passions and temptations, the Mother and the daughter are chosen; not the one directly and the other by interpretation, but both of them properly, directly and immediately. For these rea∣sons the case of these passions is curiously to be distinguish'd from the pre∣cedent. But when these passions doe come to extremity, although their proper acts are not the lesse sins but the greater, as an act of anger is the more devilish by how much the passion is the more extreme; yet if any aequivocal and contingent effects be produc'd, as if in the violence of lust a child be run over and hurt, or any thing that is not natrual to that passion, nor intended by the man, then according to the degree of the ecstasy and transport by the passion, the contingent effect may be lessen'd in it's malig∣nity. And in this sense is that of Libanius to be understood;* 1.24 or else it is not true, that injuries are very often to be remitted if the man hath drunken∣nesse for his excuse, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, or anger, or for∣getfullnesse, or arrogance, or any such like thing. Like to this is that of Arrius Menander,* 1.25 Capital punishments are not to be inflicted per vinum aut lasci∣viam lapsis, to them that offend by the follies of drunkennesse or the violence of lust.

—Et vino tortus, & irâ:

Wine & rage are like two racks, & compel men to open secrets. Now when the case is so that the effect is aequivocal, as it is in drunkennesse in many instances, and in other passions sometimes, there onely there is some dimi∣nution or excusing of the crime. But the Ancients gave too much liberty, and an indifferent sentence in these cases, because wanting the Christian measures they understood no better.

Notes

• * 1.1

  1.
• * 1.2

  2.
• * 1.3

  Ethic. lib. 3. cap. 1.
• * 1.4

  ibid.
• * 1.5

  lib. 3. Chap. 1. Rule 2.
• * 1.6

  3.
• * 1.7

  ubi suprá. & lib. 2. Chap. 3. Rule 11.
• * 1.8

  4.
• * 1.9

  lib. 3 Metam
• * 1.10

  lib. 5. Thebais.
• * 1.11

  5.
• * 1.12

  Dial. Me••etrie.
• * 1.13

  6.
• * 1.14

  7.
• * 1.15

  8.
• * 1.16

  lib••. singul. ad Marcellin. de Spir. & liter.
• * 1.17

  in Epicte••um.
• * 1.18

  lib. 11. Ep. 59.
• * 1.19

  9.
• * 1.20

  Seneca.
• * 1.21

  10.
• * 1.22

  Ethic. lib. 10. c. ult.
• * 1.23

  11.
• * 1.24

  Declamat. 22.
• * 1.25

  ubi suprá.