« AnteriorContinuar »
3. If the bargain gave some advantage on either side, the minor must not take the advantage offered him by the civil law to himself, unless he allow to the other his share of advantage in the bargain: for otherwise there is inequality. But,
4. Neither one nor the other is to be done, nor the contract to be rescinded, if the person was naturally capable,-that is, unless it be apparent by the consciousness of his own weakness, or the iniquity and folly of the contract, that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 than 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 always 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, the rule is true, which Panormitan affirms, in prosecution of what, I have now disputed: “ Quando jus civile aliquid disponit contra jus naturæ, standum est juri naturæ:” and in particular to this very instance of unsolemn testaments Pope Alexander III. being asked, whether, according to the custom that was in the diocese of Ostia, a will could be valid, which was not attested by seven or five witnesses at least, gave in answerh,“ Tales leges à divina lege et sanctorum patrum institutis et à generali ecclesiæ consuetudine esse alienas; et ideo standum esse contra illas jure naturali, secundum quod in ore duorum aut trium stat omne verbum.'” Which words of his I only 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 urged by our blessed Saviour to the Jews as a thing admitted to 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, introduced by the civil- constitution, as I affirmed above i: viz. when the innocent and equal state of nature, to which such simplicity or small duplicate of testimonies were sufficient, becomes changed by frauds and artifices of evil men, or new necessities are introduced, 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.
h Cap. cum esses de testa.
i Rule 10. n. 51.
Lastly, to make up the measures and cautions of this discourse complete, it is to be added; that, when the civil laws annul an unsolemn contract or testament, it is meant, that such are to be declared null, when they come into judgment; not that the action, or translation of any dominion, inheritance, or legacy, is ipso facto void: and, therefore, he that is possessed 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 required by law: for he hath the advantage of a natural right or power in the donor, and that, being first, must stand till it be rescinded by a competent power; for the whole question being but probable on either side, the possessor, or the donee, hath the advantage till a stronger than he comes and takes away that in which he trusted.
Sins against the Laws of Nature are greater or less, not by
that Proportion, but by the Greatness of the Matter, and the Evil consequent, or the Malice of the Sinner.
This rule is intended to remedy a greater error, that is in the world and prevails very much to the abuse of men's persuasions in many cases of conscience ;- viz. that all sins, which are unnatural, are the worst: and to be a sin against nature is the highest aggravation of it in the world: which if it were true in thesi, yet, because when it comes to be reduced to practice, it is wrapped up in uncertain notices, it ought to be more warily handled. For when men have first laid huge loads of declamations upon all natural rights and natural wrongs, and then endeavoured to draw forth a collective body of natural laws, and they have done it by chance or as they please,—they have put it within their own powers to make what things they list as execrable as murder or blasphemy; without any other reason, but that they have called them unnatural sins.
Concerning which these things are considerable :
1. All sins against nature are no more the most detestable than all sins against God: because if the kind of sins, or the general reason or object of its irregularity, were all that were considerable in this, nothing could be the aggravation of a sin more than this,--that it were against God. Now, because all sins are against God, and yet amongst them there is difference, the greatness of this appellative is not the only thing that is considerable. But this is, that as all sins are against God, so all are against nature, some way or other : and the reason that concludes against every sin, is that reason that is common to all wise men; and therefore it must be also natural: I do not mean, taught us without the help of revelation or institution,—but such as all men, when they are taught, find to be really, and in the nature of things so constituted, to be reasonable.
All voluntary pollutions are sins against nature; because they are satisfactions of lust in ways otherwise than nature intended: but they are not, all of them, worse than adultery or fornication. For although all such pollutions are besides nature's provisions and order, yet some of them are more single evils than fornication; which although it be against nature too, because it dishonours the body, yet it is by name forbidden in the commandment, which some of the others are not, but come in by consequence and attendance: and fornication includes the crime of two, which the other does not always; and it is acted with more vile circumstances and follies, and loss of time, and other foul appendages. It is said to be against nature to approach a woman during her natural separations. But if it be a sin (which I shall consider in its due place), yet it is of the smallest consequence and malignity; so that for a sin to be against nature, does only denote its material part, or the body of it; but does not always superinfuse a venom and special malignity, or greatness of crime into it, above other sins. But it is according as the instance is. Every sin against the duty we owe to our parents, is unnatural: but they have their heightenings and diminutions from other accounts, and in this they have variety. And it is observable, that there were some laws made concerning some of these and the like instances in the judicial law of Moses: but none in the moral: and, therefore, that the irregularity in some of these cases, though it hath met with a foul appellative, yet is to be esteemed by more certain proportions than such casual appellations.
2. The breach of a commandment is a surer rule to judge of sins, than the doing against a natural reason. For there are many things, which are unreasonable, which are not unlawful: and some things, which are, in some circumstances, reasonable, but yet, in the law, forbidden and irregular : such are all those things which are permitted for the hardness of our hearts. So was polygamy to the patriarchs, and to the Jews. So is the breach of laws by an universal deficiency of the people; which though it be infinitely unlawful, yet, for the unreasonableness in punishing all, it becomes permitted to all. Therefore, to estimate the goodness or badness of an action by its being reasonable or unreasonable, is infinitely fallacious, unless we take in other measures. It is unreasonable that a man should marry when he is fourscore years old; but it is not unlawful. It is unreasonable for an old man to marry a young maiden; but I find no sin in it. Nothing is more against nature than to marry June and December; and it is unnatural to make productions by the mixture of an horse and an ass; and yet it is done without scruple. But, in these and the like cases, the commandment and nothing else is the measure of right and wrong
3. When the measure of the commandment is observed, the degree of the sin is not to be derived from the greatness nor smallness of its unreasonableness in its own nature, nor yet by its contradicting a prime or a secondary reason.
The reason of the first is,-because there are no degrees of reason in the nature of things. Reason is an indivisible thing, simple as the understanding; and it only receives increase by numbers, or by complication with matter and relations. It is as unreasonable to think a thought against God, as to kill a man. It is as unreasonable and unnatural to speak against experience, as against a necessary proposition: against a truth in mathematics, as against a truth in Scripture; and in the proper natural reason of things there can be no difference in degrees, for a truth increases not, neither can it decrease.
The reason of the second is,-because that a reason is prime or secondary, is accidental to the case of conscience, or to the efficacy of its persuasion. For before contracts were made or dominions distinguished, it was a prime truth, that such things, as every one seized on, were his own by the priority of title. It was a secondary truth, that every one was to be permitted to his right for which he hath contracted, and which is in his possession. Now these reasons are prime or consequent according to the state of things to which they are fitted, but the reason from thence receives no increment, nor the fact any alteration.
And this is also true, whether the reason be known to us with or without a teacher. For the highest truths of God are such, as are communicated by revelation; and it is all one, whether God teaches us by nature or by grace, by discourse or by experience. There is this only difference, that in such truths which are taught, some men can have an excuse, because all are not alike instructed in them; but in those things which are born with us, or are consented to as soon as spoken, it cannot be supposed but all men (that are not fools) know them; and, therefore, they can have no pretence of ignorance in such cases: so that sins against prime or secondary truths, against truths original or consequent, truths born or taught, do not differ in the nature of the things, but may cause an accidental difference in the person, and may take from him the excuse of ignorance, and so make the man more sinful; but not the action in itself and in its own nature worse.
Actions, wohich are forbidden by the Law of Nature either for
Defect of Power, or for the Incapacity of the Matter, are not only unlawful, but also void.
This is true in contracts, and acts of donation, in vows 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 Cornelia's servant, because he desires to have children, and to live comfortably