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 7. Actions which are forbidden by the law of Nature either for defect of power, or for the incapa∣city of the matter, are not onely unlawful but also void.

THIS is true in contracts,* 1.1 and acts of donation, in vowes and dedition, and all rely upon the same reason. He that cannot give, and he that cannot be given cannot contract or be contracted with. Titius intends to marry Cor∣nelia's servant, because he desires to have children, and to live comfortably with the wife of his youth. He does so; and in their first access he finds her whom he thought to be a woman, to be an Eunuch; and therefore not a person capable of making such a contract: she did ill in contracting, but she hath done nothing at all besides that ill, for the contract is void by the in∣capacity of the person.

Upon this account the Lawyers amongst the causes of the Nullities of marriage reckon Error personae,* 1.2 the mistake of the person; though certainly this is not to be extended beyond the meer incapacities of Nature, if we speak of Natural nullities. Thus if I contract with Millenia whom I suppose to be a Lady, and she proves to be a servant, or of mean extraction, though if she did deceive me she did ill in it; yet if she could naturally verifie that contract, that is, doe all the offices of a wife, the contract is not naturally void; whe∣ther it be void upon a civil account is not here to be enquired: but by the law of Nature it is void, onely if by nature it cannot be consummate. For by a civil inconvenience or mistake the contracts of Nature cannot be Naturally invalid; because that is after Nature and of another consideration, and of a different matter. For that a mans wife should be rich, or free, is no more of the necessity of the contract of Marriage, then it is that she should be good natur'd, or healthful: with this onely difference, that if a man contracts upon certain conditions, the contract is void if the conditions be not verified; and for those things which are present and actual he can contract, but not for what is future, contingent and potential. A man may contract with a maiden to take her for his wife if she be free, or if she have such a portion; but not upon con∣dition that she shall be healthful for seven years. Because whatever condition can be stipulated for must be actual before consummation of the Marriage: afterwards it is for better or worse: the want of any such condition is not so great an evil to the man as it is to the woman to be left after she is dishonour'd. So that if it be a thing which can be contracted for, and be actually contracted for, in the destitution of the condition the contract is void. But if there be no such express stipulation made, there is nothing can be made a nullity by na∣ture, but that which is a natural incapacity: and therefore if a Gentleman

contracts with a slave whom he thinks to be a free woman, with a bastard whom he thinks to be legitimate, with a begger whom he thinks to be a great Heiress, the contract is Naturally valid; because there is in it all the Natural capacity; if she be a woman, if she can be a wife, and can be his, there is no more requir'd to a verification of the contract in the law of Nature. By the way I desire to be observed that to separate or disannull a contract is not the same thing with declaring it to be null of it self or from the beginning. The reason why I insert this here is lest the explication of the Rule seem infirme up∣on the account of other instances: For if a man marries a woman whom he took for a maid and she proves not to be so, by the Mosaick law she was to be separated by death or divorce: but this is not a nullity: but a divorce may be for that cause which was in being before the marriage as well as for the same reason after.

The other natural cause of invalidity is when the contract is made by him who had no power naturally to make it.* 1.3 This happens in case of precon∣tracts. Spurius Fescennius woes a Greek Virgin, and obtaining her consent contracts himself to her, and promises to marry her within a certain limited time. But before the expiration of that time Publius Niger dies, and leave his widow young and rich and noble; which advantages Fescennius observing, growes in love with them and in a short time quits his pretty Greek, and mar∣ries the rich Roman Lady. But being troubled in Conscience about the fact inquires what he hath done, and what he ought to doe: and he was answer'd thus, If he was married to the Greek, he must return to her if she will receive him, and quit his new lady; because he was not a person capable to contract with her being married to another: a dead man may as well marry as that an Husband can marry to another, and quit that which had possess'd all his for∣mer power. For in all moral actions there must be a substantial, potestative principle that must have a proportion'd power to the effect; a thing cannot be done without a cause and principle in morality, any more then in Nature. If a woman goes about to consecrate the holy Sacrament, it is 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, it is an ineffective hand, she sins for attempting it, and cannot doe it afterwards; and it were wiser and truer if men would think the same thing of their giving baptisme, unless they will confess that to baptize children is a meer natural and secular action to which Natural powers are sufficient; or that women have re∣ceived Spiritual powers to doe it; and that whether a Priest, or a Woman does it is no difference, but matter of order onely. If an effect be spiritu••••, the agent must be so too, if the effect be gracious and precarious, so must t•••• active cause; Thus it is in contracts, and donations, which cannot be done without the power of him that does it. But he who hath already given away his power, hath none to act withall: he cannot doe one action twice.

But this is to be understood onely after the actual cession of the power and active principle;* 1.4 not after promises but after possession. Therefore if Fescen∣nius was onely contracted or promised for the future though he sin'd grievous∣ly in afterwards contracting with the other, yet it is valid. For a promise take•• not away our dominion in a thing, but obliges us to use it in a certain manner▪ Bartolus appoints his Cosen Ancharanus to be his Proctor at a Synod, and promises that he will not revoke the deputation: but afterwards does; he is a breaker of promise; but the revocation is good. So it is in Testaments, and so in promises. For if after promise we have no right in the thing which we have promis'd, then we have no power to performe it; but if we have a right, then the after act is valid, because it hath a natural potestative cause; but if

the power be past from us, as if Fescennius were married to the Greek, he had not himself to give; for as he in the Comedy said of servants.

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The man hath not power over his own body, but the Master hath; so hath the wife over the Husband, and therefore he hath nothing now to give, and if he does, he does nothing; the man loses his honesty, but the wife does not lose her right. But of the instance I am to speak in its own place. Here onely I am to consider the general Rule and its reason.

Notes

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