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That we are to restore all that was intrusted to us, is à natural law derived from the rule of doing justice: but this may be derogated and prejudiced without sin. For prescription transfers the possession and disobliges the fiduciary from restitution.
By the law of nature relying upon the rule of performing contracts, clandestine marriages are valid and firm: but yet some churches, particularly the church of Rome, in the council of Trent, hath pronounced some marriages void, which, by the rule of nature, and afterwards by a law, were rate and legal; particularly, clandestine marriages, and marriages not clandestine by the ingress of one of the parties into religion, as is to be seen in the eighth session.
By the law of nature a testimony under two or three witnesses may stand, but in the case of the accusation of a cardinal-deacon in Rome, they require the concurrence of seven and twenty; of a cardinal priest, sixty-four ; of a cardinal bishop, seventy and two-and, in England, one shall serve the turn, if it be for the king. In codicils the civil law requires five witnesses. In testaments there must be seven: when a controversy is concerning the eminency and prelation of excellent persons, fifteen are demanded. But if these things may be prejudiced by men, much more may they be altered by God." But this extends itself a little further. For in some of these instances, that which is a law of nature, becomes so inconvenient as to do much evil, and then it is to be estimated by a new rule; and, therefore, the whole law is changed, when it comes to have a new measure, and the analogy of a new reason.
Upon the account of these premises it follows, that it is but a weak distinction to affirm some things to be forbidden by God, because they are unlawful; and some to be unlawful, because they are forbidden.'-For this last part of the distinction takes in all that is unlawful in the world, and therefore the other is a dead member and may be lopped off. So Ocham! affirms against the more common sentence of the schools (as his manner is); “ Nullus est actus malus, nisi quatenus à Deo prohibitus est, et qui non possit fieri bonus
9 2. q. 19. ad 3. et 4.
si à Deo præcipiatur, et è converso;" “ Every thing is good or bad according as it is commanded or forbidden by God, and no otherwise.”—For nothing is unlawful antecedently to God's commandment. Sin is a transgression of some law, and this law must be made by a superior, and there is no superior but who depends on God, and therefore his law is its measure. There are some things good, which God hath not commanded; but then they are such which he hath commended by counsels, or analogies and proportions. But whatsoever is a sin, is so therefore because it is forbidden; and without such a prohibition, although it might be unreasonable, yet it cannot be criminal or unjust. Since, therefore, all measure of good and evil, in the intercourses of men, wholly rely upon the law of God, and are consequent to his will, although it can never be that we can have leave to be unjust, or unchaste, that is, to do against a law in being with all its circumstances,—yet the law may be so changed that the whole action which was forbidden, may become permitted, and innocent--and that which was permitted, may become criminal. I instance in the depouigla, or the conjunction of the nearest kindred, which once was lawful, and ever since is become criminal.
The purpose of this discourse is this ;—that we look no further for tables of the law of nature, but take in only those precepts, which bind us Christians under Christ our lawgiver, who hath revealed to us all his Father's will. All the laws of Christ concerning moral actions are the laws of nature': and all the laws of nature, which any wise nation ever reckoned, either are taken away by God, or else are commanded by Christ. So that Christianity is a perfect system of all the laws of nature, and of all the will of God, that is, of all the obligatory will; of all the commandments. In those things where Christianity hath not interposed, we are left to our natural liberty, or a Jus permissivum,' a permission, except where we have restrained ourselves by contract or dedition.
The Law of Nature is the Foundation of all Laws, and the
Measure of their Obligation.
For all good laws, and all justice, hath the same reasonableness, the same rules and measures, and are therefore good because they are profitable,--and are therefore just, because they are measured by the common analogies and proportions :-and are therefore necessary, because they are bound upon us by God mediately or immediately. And, therefore, Ciceroa defined virtue to be perfecta et ad summum perducta natura,” or “ Animi habitus naturæ modo, rationi consentaneusb," “ The perfection of nature,” or “a habit of mind agreeing to natural reason.”—But more expressly and full in his second book de Legibus°: “ Lex est, justorum injustorumque distinctio, ad illam antiquissimam et rerum omnium principem expressa naturam, ad quam leges hominum diriguntur, quae supplicio improbos afficiunt, defendunt ac tuentur bonos:” “ A law is the distinction of good and bad, of just and unjust, expressed or fitted to nature, which is the first and the prince of all, and to which human laws are directed for the punishment of evil doers, and the defence of the good.”-And it is evident in all the moral precepts of Christianity: all which are so agreeable to a man's felicity and state of things, to which a man is designed both here and hereafter, that a man cannot be happy without them : and, therefore, they all rely upon some prime natural reason, which reason although possibly some or all of it was discovered to us by revelation and the wise proper discourses of the religion, and was not generally known to men before Christ, yet the reasons are nothing but consonancies to our state and being, introductive of felicity, perfective of our nature, wise, and prudent, and noble, and such which, abstracting from the rewards hereafter, are infinitely eligible and to be preferred for temporal regards before their contraries.
a De Leg. i. c. 8. Davis. Rath. p. 38. b De Invent. ii. sect. 159. Proust, p. 278. e De Leg. ii. e. 5. Davis. Rath. p. 111.
Add to this, they are such which some few the wisest of the heathens did teach by natural reason, for aught we know. And there is a proportion of this truth also in all the wise laws of commonwealths. The reasons of which are nothing but the proportions of nature, and the prime propositions of justice, common utility, and natural necessity. And, therefore, supposing that every civil constitution supplies the material part or the instance, every civil law is nothing but a particular of the natural law in respect of its formality, reasonableness, and obligation. And all laws of manners are laws of nature: for there can be but one justice, and the same honesty and common utility in the world; and as a particular reason is contained in the universal, so is the particular profit in the public; “Saluti civium prospexit, qua intelligebat contineri suam," said Torquatus d in Cicero, and so it is in laws. In the observation of the laws of nature the good of every society and every private person is comprised: and there is no other difference in it, but that in every civil constitution there is something superadded; not to the reasonableness or justice, but it is invested with a body of action and circumstances. “Jus civile neque in totum à naturali ac gentium jure recedere, neque per omnia ei servire; adeo ut cum juri communi aliquid additur vel detrahitur, jus proprium, id est, civile efficiatur,” said Justiniane: “The civil law neither does wholly recede from the law of nature and nations, neither does it wholly serve it: for when any thing is added or detracted from the natural law, it becomes the civil:” and another; “ Leges positivæ repetunt jus naturæ quum leges sive pactiones quæ sunt jura attingunt utilitatem et scopum naturæ;" “ The positive laws of a commonwealth repeat the law of nature, when laws and covenants do promote the profit and this design of nature.”
But from hence it follows that the law of nature is the only rule and measure of all laws, and superinduced laws of God and man are but instances of obedience in those general precepts of nature; and since the law of Christianity contains in it all the law of nature; and is now the only law that can oblige us primarily, and others in virtue of it: it is the prime and adequate rule and measure of conscience, and the explication of all its precepts will be a full institution of conscience: to which purpose that saying of Lælius in Cicero", is very pertinent: “ Viros bonos appellandos esse putamus, qui assequuntur (quantum homines possunt) naturam, optimam bene vivendi ducem;" “ Nature is the best guide and measure of living well: and they who exactly observe her measures as far as men can, are to be called good men.”
d Dę finib.
· Lib. vi. ff. de justit. et jure,
The first and greatest Band of the Law of Nature is Fear of
I have already spoken of this as it is the act and effect of conscience : here I am to speak of it more abstractedly, and as itself hath effect upon human actions ; there as it is the minister of the judge: here as it is the sanction of the law.
“Omne malum aut timore aut pudore natura suffudit," said Tertulliana; fear and shame are the waiters and handmaids of every sin, which nature hath provided for it.-And indeed fear is the band of all laws. For although there is a pravity in the nature of injustice which natural reason hates, proceeding partly from the deficiency from the perfective end of nature and societies, which is served by justice;--partly from the consequent obloquy and disrepütation, which all wise men and all talking people put upon it (for they that do it themselves, speak ill of it in others); yet this is but a little. This is a part of the punishment of the breach of the natural law; but not strong enough to make a firm obligation. Now in all laws there must be some penalty annexed, the fear of which may be able to restrain men from doing against the law: which cannot be, unless the evil be greater than the benefit or pleasure of the prevarication can be: and therefore it is, that God establishing this law hathi appointed a court within us, a severe judge, who will not
î De amicit. Wetzel, c. 5. sect. 11. p. 153.
a Apolog. c. 1.