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 5. The imperfection of some provisions in civil laws are supplied by the Natural obligation remaining up∣on persons civilly incapable.

〈…〉〈…〉

WHen laws make provision of cases 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉,* 1.1 in as many things as they can foresee, or feel, and yet some things will emerge which cannot be foreseen, and some contrary reasons will arise; many times there is no care taken for some things and some persons by any constitutions of Man. Here Nature as the common Parent of all justice and necessary obligations, takes the case into her protection.

This happens in many cases:

1. Humane laws give measures of things and persons which fit most men without a sensible error,* 1.2 but some it does not. Young persons are at a certain age declar'd capable of making profitable contracts; at another age of making contracts that are hazardous, and they must stand to them, though they be mischievous. At one age they may marry; at another they may con∣tract a debt; at another they may make a Testament; at another they may be punished with Capital inflictions. But in some persons the malice is earlier and the wit more pregnant, and the sense of their advantages brisk enough: and therefore the contracts which they can make; and the actions which they doe, and the part which they choose is really made, or done, or chosen; but they not bound to stand to it, by the civil law: and yet if they can choose they are naturally obliged. Both of them are necessary: The civil law cannot pro∣vide but by common measures

Quos ultrà citráque nequit consistere rectum.

all their rules are made by as common a measure as they can, and they are the best rules that have the fewest exceptions: the best Carpenters make the few∣est chips: but some there must be. But then it is necessary that Nature should provide, by single provisions in all the single exceptions; for it is ne∣cessary it should be done, and she onely can doe it. She can doe it because Nature hath provided an instructed, a judging and a discerning Conscience, and the person that contracts or receives a benefit, can bind himself to man as soon as he can bind himself to God; because the laws of God bind all our contracts with men. That is, plainly thus, God's laws provide not onely for general cases but also for particular circumstances; and of every thing God and Gods vicegerent, Conscience, can take accounts; and therefore this abun∣dance

supplies the others defect; the perfection of God makes up the breaches of the imperfection of Man. Which rule is to be understood both of things and persons. For all our duty is onely an obedience to God: and every one that can hope or fear is bound to this obedience; therefore there can be no gap here: God hath in every thing shut up every person that can use reason, by some instrument or other.* 1.3 And therefore Cicero said well, Si regnante Tar∣quinio nulla fuisset Romae scripta lex de stupris tamen contra illam legem sempiternam Sextus Tarquinius vim Lucretiae Tricipitini filiae attulit: erat enim ratio profecta a rerum Natura, & ad rectè faciendum impellens, atque à delicto avocans. There was no civil constitution against rapes, but Tarquin ought not to have done it; for there was an eternal law against it. For right reason proceeding from Na∣ture drives us on to good and calls us off from evil. That is, he could not but know it was ill, and against reason, and against every thing by which he ought to be governed; and even to the Heathen God was not wanting, but bound these laws upon them by reason, and inclination, and necessity, and fame, and example, and contract, and hope, and fear, and by secret waies which we know not of. He made some inclinations and some reason to be∣come laws, that Mankind might not live like beasts and birds of prey: in all cases, and in all times, and to all persons he became a Lord and a Lawgiver some way or other.

Young persons of twelve or fourteen years old can be sav'd or damn'd,* 1.4 they can love or hate, they can Understand yea and nay, they can doe a good turne or a shrewd, they can lead a blind man right or wrong, they can bear true or false witness: and although the civil laws out of care least their easiness be abused by crafty people, make them secure from it by nulling the contract, that the deceiving person may not reap the harvest of his fraud, yet there are very many cases in which the Minor receives advantage, or at least no wrong, and though it was fit he should be secured, it was not fit he should be enabled to doe a mischief to another, ut levamen his, aliis sit onus, as S. Paul in a like case, that they be eased and others burdened. For although the other Contractor be sufficiently warned to take heed of the Minor, yet there may be need in it, or charity, friendship or Confidence; all or any of which if they might be decei∣ved the Minor would suffer often, but the other Contractor but once. There∣fore as the Civil law secures them from harme, so the law of Nature binds them to doe none, but to stand to such contracts in which they have advantage or equality, and in which they were not abus'd. * The time when they come to be oblig'd is the time when they come to the use of reason * when they under∣stand their duty * when a prudent man judges them fit to be contracted with * when they can use fraud to others * when they can consider whether they be bound or no: these are the best marks and signatures of the time, and declare the obligation in all cases where there is no deception evident.

2. Sometimes both parties can contract:* 1.5 but because they doing it with∣out witnesses, may recede from it, either consentigly or against the will of one of them, the positive constitution of Man intending to provide against this inconvenience hath cut the civil tie in peeces and refuses to verifie the contract, besides that it cannot legally be proved. In this case Nature relieves the op∣pressed party, and supplies the easiness of the civil band, and strains that hard which the others let loose. And this happens in clandestine contracts: against which in the matter of marriage all Christian Countries have made severe edicts: but in case they be done, in some places they are pronounced valid, in

some places declared Null. Where they are nulled, Nature is defeated in ma∣king provisions and the parties are warranted to doe a mischief. For if Mau∣ritius and Cluviena contract marriage; and Mauritius repent his bargain where shall Cluviena be reliev'd? The law of the Church forbids it, and will punish her for doing it if she complains. The Civil law takes no notice of it, for it cannot be legally prov'd: and the law of Nature is barr'd out, if it be declar'd Null; and then there is nothing left to hold him. It is the case of the Church of Rome who in the eighth Session of the Councel of Trent declares all clandestine contracts to be null, and their mixtures to be fornication and uncleanness. But they have overacted their zeal against a temporal inconve∣nience, and burn their house to roast an egge; they destroy a law of Nature by a law of the Church; against the former practices, counsels and resolutions, even of their own Church. * For if those contracts are in themselves naturally valid and not forbidden by God,* 1.6 then they cannot rescind them: if they be not naturally valid, since they were alwaies positively forbidden, why were they estee∣med valid for so many ages? For till that Councel they were so, but finding that the former prohibitions were not strong enough, they took this course to break them all in pieces: And out of desire to prevent an accidental evil, they made it more ready to be done. For it was before but feared lest they should re∣cede: but yet if they did, they were esteem'd adulterers if they married again: and they themselves knew when they were precontracted; and therefore stood convicted and pinch'd in their own Consciences so long as the old laws re∣main'd, and men did not receive warrants to break the most sacred bands in the world: but by this nullifying the contract, they have not onely leave to goe off, but are commanded; and if they be weary of this, they may con∣tract with another, and there is nothing to hinder them, if Nature does not. This Nullity therefore is a vehement remedy that destroies the patient; besides that it is against the law of Nature. The laws may forbid it to be done; but if it be, they cannot rescind it; because the civil constitution is less then the Natural, and convenience is less then Conscience, and man is infinitely less then God.

3. Some pretend to doe a greater good,* 1.7 and to doe it, break a contract justly made: and if the civil constitution allowes it, the law of Nature r••∣claimes, and releeves the injur'd person. This was the case of the Pharisees who denied to releeve their Parents out of zeal to fill the Treasure of the Tem∣ple, and thought that their voluntary religion excus'd from their Natural du∣ty. The Church of Rome gives leave to either of the persons who are married solemnly, and contracted rightly to recede from their vow and enter into religi∣on, and declares the marriage separate and broken. Here Nature calls upon the obliged party, and ought to prevail above any other pretence; it being first in possession and faster in obligation: and if it be naturally an evil to break a law∣ful contract made without fraud, and which is in our power to keep; then it ought not to be done for any good in the world.

4. Hither also are to be reduc'd,* 1.8 obligations by Unsolemne stipulations, by command of Parents, by intermination of curses, by meer delict amongst persons, against whom lies no civil action, as of servants to their Lords, sons to their Fathers: concerning which proper accounts are to be given in their own places. Here onely they are to be noted in the general observation of cases in which the law of Nature hath made an obligation, when the civil power could not, or would not, or did against it.

But it is proper to discusse a difficult question which intervenes upon this rule.* 1.9 The case is this; By the law of Nature every man hath power to make a Testament of his own Goods: But the civil law requires conditions of every Testator that the Testament shall be ratified by so many witnesses, or else it shall be invalid. Sempronius dying leaves Caius his heir, and gives but a small portion to his son Porcius, but declares this by an Unsolemne Testament. The like may happen in all donations and actions to which any solemnities of law are required.

Quest.

THe question is,* 1.10 Whether the Estate be due to Caius by the law of Na∣ture, or is not Porcius the son to be releeved by the civil Constitution which makes the Unsolemne Testament to be invalid? To this it is com∣monly answer'd, That to make a Testament is not a law of Nature, but a right onely, which as a man may himself relinquish, so may the publike laws restrain for the publike good: for there being so many frauds in pretended Testaments it is necessary that provisions should be made to prevent the infinite evils that may happen. Now whatsoever is necessary, is also just; if the necessity be publike, real, and unavoidable by other means: and if it be just, the publike power hath sufficient authority to restrain any mans right for every mans good.

2. Every sentence of the Judge in a clear case that binds in law,* 1.11 does also bind in Conscience; but if the Judge of civil actions did know that Semproni∣us really did appoint the stranger Caius his Heir, yet by the law he were bound to declare for the son Porcius, and that the real unsolemne Will of Sempronius were to be accounted nothing: So that although the Law were made to pre∣vent fraud, yet even when there is no fraud, and the Judge knowes there is none, yet the Unsolemne Testament is to be declar'd invalid by the law: which law because it is just, and for a just cause, and by a competent Authority, must bind in Conscience by the force of the words of S. Paul; Let every soul be subject to the higher powers. And therefore if the law be good and the Judge just in giving the inheritance from Caius to Porcius, certainly Caius must needs be unjust if he detains it.

3. And this very thing is consented to in the Canons of the Church,* 1.12 which are usually fram'd, and ever to be presum'd (ubì contrarium non constat) to be more agreeable to the measures of Conscience; and yet in the Canon law, a Testament fram'd and sign'd in the presence of two witnesses is not good, unless the Parish Priest be present; and that no man can lawfully detain a legacy upon the Warrant of such a Will.

4. For since every act of man consists of the potestative and elective fa∣culties,* 1.13 if either will be wanting, or power, the act is invalid. It is not there∣fore enough though the will be manifest and confessed; for if the man have no power, his will is ineffective.

But this opinion though relying upon fair probabilities and great autho∣rity,* 1.14 is not to be assented to as it lies, but with great caution and provisions. For a right of Nature cannot be taken away by a civil power, intirely, and habitually, but onely quoad exercitium actûs; the exercise of the act of that right may indeed be impeded for great reasons and to prevent great evils, since therefore the power of making Testaments is a Natural right, and is wholly

suspended in its act to prevent frauds in Unsolemne Testaments, where the case is evident and no fraud at all, although the civil law is still valid because it being established upon a general cause, though it fails in a particular it does not fail in the General, and therefore still is rate and firme; yet because it does fail in the particular where that is known, there is a port open for Chan∣cery, for considerations of piety, and religion. And therefore although in the case put, Porcius who is the natural Heir of Sempronius, is to take the ad∣vantage of the civil law against Caius; yet if Sempronius had made an Unso∣lemne Testament in behalf of his Natural Heir, that ought to have stood in the Court of Conscience. My reason is, because in the law of Nature, Por∣cius the son hath as much Natural right to inherit, as Sempronius the Father hath to make a Testament; and therefore although an Unsolemne Testament shall not be sufficient to interrupt a Natural succession, because the rights of Nature on either hand are equal; yet the civil power can restrain his right when there is nothing complicated with it: for his own consent is involved in the publike constitution, and he may consent to the diminution of his own right, when no duty is infringed, that is, in those things where onely his own rights are concerned.

When therefore any thing of the law of Nature is twisted with the right of Nature,* 1.15 there is an obligation past which the civil constitution cannot annull. As if Sempronius command his son in an Unsolemne Testament, in private and without witnesses to give such a legacy to Titius his Nephew; although Titius cannot challenge it by vertue of that Testament, yet the son is bound to pay it by the law of Nature: for Civil constitutions have effect upon a meer right, but none against a duty of Nature: and therefore although the Testament of Sempronius shall not pass into legal, external, judicial warranty, yet it binds the son, and is valid as to him by the law of Nature and Consci∣ence. And this was rarely well affirmed by Pliny:* 1.16 Hoc si jus aspicias, irritum; si defuncti voluntatem, ratum & firmum est; mihi autem defuncti voluntas (ve∣reor quam in partem Jurisconsulti quod dicturus sum accipiant) antiquior jure est. If we regard the civil law such Testaments are invalid; yet if we regard the will of the Testator it is firme: but though I know not how the Lawyers will take it, yet to me the will of the dead is to be prefer'd before the law: and more fully yet to Antonianus;* 1.17 Tu quidem pro certa tua diligentia admones me, codicillos Attiliani, qui me ex parte instituit haeredem, pro non scriptis habendos, quia non sunt confirmati Testamento, quod jus nec mihi quidem ignotum est, cùm sit iis etiam notum qui nihil aliud sciunt. Sed ego propriam quandam legem mihi dixi, ut defunctorum voluntates, etiam si jura deficerent, quasi perfectas tuerer. Constat enim codicìllos istos Attiliani Manuscriptos: licèt ergo non sint confirmati Testa∣mento, à me tamen ut confirmati observabuntur. Every one that knowes any thing knowes that in law Unsolemne Testaments are invalid: but I have ano∣ther law of my own, if I know it was really the will of the Dead, I will veri∣fie it though it want the solemnity of law: and this also was affirmed by In∣nocentius, saying, Electionem quae juri naturae consentit, licèt non serventur, juris solennitates tenere. cap. Quod sicut: de election.

And there is great reason and great piety in this sense of the question;* 1.18 For when a duty is any waies concerned, there is something owing to God which no humane power can or ought to prejudice. For it is in Testaments where any duty of any one is engaged, as it is in contracts of marriage to which every one that can choose is capable of being naturally obliged: now the

relative of the obligation cannot in humane Courts claim either the advantage of an Unsolemne Testament, or Unsolemne and clandestine Contract, yet the relative who is oblig'd to duty cannot be so quitted: and therefore the Father can oblige a son in duty to perform an Unsolemn Testament; and every con∣tracted person is bound to perform privately what the other cannot challenge publikely: and this is not obscurely intimated by the law: L. hac consultissimâ C. detestam. Ex imperfecto autem Testamento voluntatem tenere defuncti non vo∣lumus, nisi inter solos liberos à parentibus utriusque sexus, viz. nisi liberi in sola dividenda haereditate voluntatem habeant patris, saith the Gloss.

And for the confirmation of all this,* 1.19 it is remarkeable that they who af∣firme an Unsolemne Testament to be utterly invalid, and that the law of Na∣ture is no remedy in this case, yet affirme that it is of force in the matter of piety; as in donations to Churches, the poor, and pious uses, as appears in Imola, Ananus, Antonius Rubeus, Covarruvias and others: which concession of theirs could not be reasonable or consistent with their opinion, but that it is made so by the foregoing considerations; which certainly are the best medi∣um to reconcile duty and prudence, the laws Natural and Civil, the right of a man with the Government of a Commonwealth, and to state the question between the two parties who earnestly dispute it to contrary purposes.

For although the question is probably disputed on both sides:* 1.20 yet there are no either hand instances in which the solemnity of the law does, and does not oblige respectively: which shewes that the probability is on either hand right and true; and the thing as it lies in the middle hath nothing certain or resolv'd; but is true or false as it partakes of differing reasons. Now the reason of the whole is; because the solemnity of law is wholly to be regard∣ed where there is not a bigger obligation; where God hath not bound, and Man hath bound, Man is to be obeyed: but where God hath bound directly, there God is to be obeyed whatever be pretended by Men: but if God hath onely bound indirectly and collaterally, as if it be a case favourable and pious, there the solemnity of law which is against it, is not to prevail; but yet is to prevail in the behalf and prosecution of it.

Thus if a Pupil makes a contract in his minority to his ruine,* 1.21 or signal de∣triment: he is to be releeved by the advantage of the civil law which makes his contract invalid, because the person is declar'd incompetent; and he may lawfully take his remedy; and is not bound by the law of Nature to verifie it: because he being less naturally capable to contract, the other is by the law of Nature bound not to doe him injury, and take unequal advantages when every man hath equal right: and therefore if he does prevaricate the Natural law of justice which is equality, he also may lose the privilege which the others action pass'd unto him; for the civil law declaring that Minors shall not be prejudic'd, makes up that justice or equality which Nature intends. For the Minor with his less portion of Understanding, and the defensative and retreat given him by the civil law is made equal to the Contractor who is perfect in his Natural capacity. Equality must be done and had. And this is one way of in∣ferring it.

Another way is,* 1.22 If the Minor receives advantage by the bargain; then there is equality; for the want of his Natural capacity is supplyed by the ad∣vantageous matter, and therefore such contracts are valid though the one of the Contractors be legally incapable. But

3. If the bargain give some advantage on either side,* 1.23 the Minor must not take the advantage offer'd him by the civil law to himself, unless he allow to the other his share of advantage in the bargain: for otherwise there is inequa∣lity. But

4. Neither one nor the other is to be done,* 1.24 nor the Contract to be re∣scinded if the person was Naturally capable, that is, unless it be apparent by the Consciousness of his own weakness, or the iniquity and folly of the contract that he was less in Nature then the other; and therefore in this case the civil law rescinding the Contract of the Minor does declare that he is incapable naturally as well as civilly: and the Civil constitution does no way interfere with the Natural, but Ministers to it; making the natural instance even with the Natural reason: for this being alwaies alike, from the first to the last, the instance growing from imperfection to perfection, must in the progression be defended and supplied and be fitted to the other.

But in General;* 1.25 the Rule is true which Panormitan affirmes in prosecuti∣on of what I have now disputed; Quando jus civile aliquid disponit contrà jus Naturae, standum est juri Naturae: and in particular to this very instance of Unsolemne Testaments P. Alexander 3. being asked whether according to the custome that was in the Diocess of Ostia a Will could be valid which was not attested by seven or five witnesses at least, gave in answer, cap. cum esses. de testa∣tales leges à Divina lege & Sanctorum Patrum institutis & à generali Ecclesiae con∣suetudine esse alienas; & ideo standum esse contra illas juri Naturali, secundùm quod in ore duorum aut trium stat omne verbum. Which words of his I onely admit so far as they are agreeable to the former measures and limitation. For that a word is true under the test of two or three witnesses is not a prohibitive law or command of Nature; but it was urg'd by our B. Saviour to the Jews as a thing admitted in their law, and it is agreeable to the law of Nature; but yet not so, but that a greater caution may be in some cases introduc'd by the civil constitution, as I affirm'd above *:* 1.26 viz. when the innocent and equal state of Nature to which such simplicity or small duplicate of testimonies were suffi∣cient, becomes chang'd by frauds and artifices of evil men, or new necessities are introduc'd which Nature did not foresee and therefore did not provide for, but God hath provided for them by other means, even by a power given to the Civil Magistrate.

Lastly,* 1.27 to make up the measures and cautions of this discourse compleat, it is to be added; that when the civil laws annull an Unsolemne Contract or Testament: it is meant, that such are to be declar'd null when they come into judgement; not that the action, or translation of any dominion, inheritance or legacy is ipso facto void: and therefore he that is possess'd of any such is not tied to make voluntary restitution, or to reveal the nullity of the donation, but to depart from it, when he is requir'd by law: for he hath the advan∣tage of a Natural right or power in the donour, and that being first must stand till it be rescinded by a competent power; for the whole question be∣ing but probable on either side, the possessour or the Donee hath the advantage till a stronger then he comes and takes away that in which he trusted.

Notes

• * 1.1

  1.
• * 1.2

  2.
• * 1.3

  Lib. 2. de lege.
• * 1.4

  3.
• * 1.5

  4.
• * 1.6

  Navarrus Enclyri••••. c. 25. ••t con••••••∣gatio Cardinalium quos tal•• & 〈◊〉〈◊〉 putidi pudibat 〈…〉〈…〉 rem factum aut dictam, & 〈◊〉〈◊〉 clandes¦ina etiam poll concilium rata manere, sicut & eate. Consula••••unt sc. famae Concilii, non propriae, aut rem tam contam, verba tam 〈…〉〈…〉 non crubuerunt.
• * 1.7

  5.
• * 1.8

  6.
• * 1.9

  7.
• * 1.10

  8.
• * 1.11

  9.
• * 1.12

  10.
• * 1.13

  11.
• * 1.14

  12.
• * 1.15

  13.
• * 1.16

  Lib. 5. Ep. ad Calvisium.
• * 1.17

  Lib. 2. Epist.
• * 1.18

  14.
• * 1.19

  15.
• * 1.20

  16.
• * 1.21

  17.
• * 1.22

  18.
• * 1.23

  19.
• * 1.24

  20.
• * 1.25

  21.
• * 1.26

  Rule 10. 〈…〉〈…〉.
• * 1.27

  22.