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infer, that since the contempt and open despite of the law only was capital, it was not any natural turpitude that deserved that calamity; it was nothing but a legal uncleanness, which every child had that did but touch her finger.
But then for the next argument, with which the greatest noise is made, and every little philosopher can, with the strength of it, put laws upon others, and restraints upon men's freed consciences; I answer, first, upon supposition that it were true and real, yet it does not prove the unlawfulness of such addresses. For if the man and woman have a right to each other respectively, there is no injury done by using their own right. “ Nemo damnum facit, nisi qui id facit, quod facere jus non habet," saith the law. But that is not the present case, for the married pair use but their own rights, which God hath indulged. And therefore Paulus d the lawyer, from the sentence of Labeo, hath defined, that no man can be hindered from diverting the water running through his own grounds, and spending it there, though it be apparent that his neighbour receives detriment, to whom that water would have descended. I know this may be altered by laws, customs, and covenants, but there is no essential injustice in it, if loss comes to another by my using my own right. To which I only add this one thing, because I am not determining a title of law in open court, but writing rules of conscience: that though every such interception of water, or other using of our right to our neighbour's wrong, be not properly injustice, yet unless he have just cause to use it, it is unlawful to do so, because it is uncharitable; because then he does it with a purpose to do his neighbour injury. And so it is in this; if any man or woman in such approaches intend hurt to the child, as hoping the child might not live, or if either of them designed that the child should by such means become hated, or neglected in provisions, and another preferred, then I doubt not but to pronounce all such mixtures impious and abominable: and to this sense those words of St. Austin e in this article are to be expounded : “ Per talem legem in Levitico positam non
d Lib. ii. de aqua pluvia arcenda.
• Lib. Nemo. de regul. juris.
naturam damnari, sed concipiendæ prolis noxiam prohiberi.” The thing itself is not naturally impure; but it is forbidden that hurt should be intended or procured to the child : for although, in the instance of Paulus above reckoned, the injury is certain, and the person definite and known to whom it is done, and in the present question both the event at the worst is but uncertain, and the person to be injured not yet in being, and therefore the case is much more favourable here than there, yet when this case does happen, there can be no excuse for it, because it is the act of an evil mind, and an uncharitable spirit.
2. Upon supposition that this allegation were true, yet it follows not that all such approaches were unlawful: as appears in the case of a leprous wife, with whom that it is lawful to have congress, is so certain that it is told as an heroic story of Dominicus Catalusius, a prince of Lesbos, that he did usually converse with his wife that was a leper, as still knowing it to be his own flesh, which no man hates: but if with a leper (whose issue is as certain to be leprous, as in the other case to be any way diseased) it be lawful, the effect notwithstanding, then the argument ought not to infer a prohibition, or conclude it to be unlawful. The same also is the case of both men and women in all hereditary diseases, and in any diseases which are resident in any principal part, with any of which if either of them be infected, it is (if this reason be good) equally unlawful for them to beget children, or to use the remedy which God hath given thém against uncleanness.
If it be answered that there is difference in the case, because the present question being of short, frequent; and periodical separations, the married person may expect natüre's leisure, who will in a short time return them to their usual liberties: but if they have a leprosy, that goes not off, but abides : and therefore either a child must be begotten with that danger, or not at all; and since it is better for a child to be born a leper, or subject to leprosy, than not to be at all; in this case there is indeed charity in some sense, but no uncharitableness in any to the child; and there is a necessity also on the parents' part. The same also is the case of a consumption, or any hereditary disease: but in the monthly separations there is no such need; because the abstinence is but short, and though a child be not then begotten, he loses not his being, as in the other cases.
To this I reply; that the difference of case pretended is not sufficient, 1. because a consumption or a leprosy are no such incurable diseases, but that, for the preventing of uncharitableness and sad effects upon the child, they may expect nature's time; and if it be said, that there is, or may be danger of fornication in so long abstinence; I answer, 'so there may be in the shorter, and is certainly to some persons ; and if the danger be an excuse, and can legitimate the congression, even where there is hazard to have a diseased child begotten, in one case, then so it is in the other. For where there is the same cause in the same suscipient, there also will be the same effect: so that at least thus much will be gotten; that if there be a need, in the time of a short separation, then it is lawful; and if it can upon this account be innocent, it is certain that it is not naturally criminal. 2. Suppose even this affection or accident abides on the wife, as on the woman in the Gospel, who after twelve years' sufferance was cured by the touch of our Saviour's garment; then there is the same necessity as in an abiding leprosy, consumption, or hereditary disease, and yet in the Mosaic law those permanent emanations were to be observed by abstinence as much as the natural and transient; by which it is certainly proclaimed to be wholly a legal rite; because if this can abide, and during its abode an approach be not permitted; although the Jews were relieved by divorces and polygamy, and concubinate, and so might suffer the law; yet Christians, who are bound to an individual bed, will find a necessity, which if it were not provided for by a natural permission, the case of some men would be intolerable, and oftentimes sin be unavoidable, and that which by accident may be lawful and necessary, certainly is not essentially evil: for if it could, then he who is the author of such necessity, would also necessarily infer that evil, and so be author of that too, which is impossible to be true of God, the fountain of eternal goodness. But I add also this consideration; that, even in the Mosaic law, such congressions were permitted after child-birth. For the legal impurity lasted but seven days upon the birth of a man-child, “ according to
the days of the separation for her infirmity shall she be unclean;" that is, for seven days she shall have the same law upon her as in her usual period, but no longer: for that which is added, “ that she shall then continue in the blood of her purifying three and thirty days;" it is not for abstinence from her husband, but from entering into the tabernacle, and from touching holy things: so that the uncleanness being determined five weeks before her purification was complete, must be in order to contact or to nothing.
But although upon supposition the allegation were true, yet the reason of it concludes not; yet the argument is infinitely the worse, since the supposition is false, and the allegation is not true. For besides that the popular heresies of physic and philosophy are now rarely confuted and reproved by the wise physicians of these later ages who have improved their faculty as much as any of the schools of learning have done theirs, and the old sayings of philosophers in this matter are found to be weak, and at the best but uncertain; the great experience of the world is an infinite reproof to them who say, that by such congressions leprous or monstrous children are produced: for the world would have been long since very full of them, if such evil effects were naturally consequent to those meetings. St. Jerome & was the first who brought this pretension into the Christian schools (so far as I can learn): afterwards the schoolmen got it by the end, and the affirmative hath passed ever since almost without examination. But the schoolmen generally affirm (being taught to speak so by Aquinas), that it is partly ceremonial, partly moral, and that in this only it is obligatory, "ex damno quod sequitur ex prole;" which, because it hath no ground to support it, must fall into the common lot of fancies and errors, when their weakness is discovered. For although those physicians, which say that this natural .emanation is a rádaçois or cleansing,' do believe, that, with the principles of generation, there may in such times be something minus salubre' intermingled; yet besides that these are opposed by all them who say that it is nothing but a κένωσις or • evacuation;' both the one and the other are found to be imperfect, by the new observations and experiments made by a learned man who finds that neither one or other can be the material part of nature's secret fabric. But however, whether he says so or no, since things are so infinitely uncertain, and man is made secretly and fashioned • in secreto terræ,' these uncertain disputes are a weak foundation of a pretext for a moral duty.
f Levit. xii. 4.
g In xliv. Isai. h Frano, à Vic. de Sacramen, de redd. deb. con.
To the last objection: that—" God abhorred the nations for all these things:”—and amongst them this is reckoned; and, therefore, there was in this some natural impurity, for by no other law were they bound, and they could not be found to be transgressors against each other: I answer; that “ all these things"-are to be taken concrete et confuse,' all indiscriminately in a heap, not all by singular distribution; as appears (besides this in question) by the instance of marriage in certain degrees: which the servants of God did use, and yet God delighted in them; for Abraham married his father's daughter, and yet this was reckoned amongst their catalogue of crimes', and so also in the case of the brother's wife, which is there reckoned, yet we know it was permitted and enjoined in the case of heiresses being childless widows : but when the thing was by God inserted into the digest of their laws and made capital, it happened to be mingled with other prohibitions, which were of things against the laws of nature. But to this objection I shall speak again in the question of cousin-germans, num. 36 and 37 of this rule.
The arguments now appearing to be invalid, I answer to the question. 1. That this abstinence was a Mosaic law, partly ceremonial, partly judicial, but in no degree moral. 2. That the abrogation of Moses' law does infer the nullifying of this, and hath broken the band in pieces. 3. That the band which untied this law upon the Jews, was the fear of death, and fear of a legal impurity: which fears being banished, and no new one introduced by our lawgiver, we are not under restraint: and if we will be careful to observe all that is commanded us in Christ's law, it will be work enough, though we bind not on men's shoulders unnecessary burdens. 4. It is a part of the spirit of bondage to be