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resolution, Ephodius dies, and Mævius tells his friend he is
disobliged, because he hath but one, and resolves not to part · with Taranta, and it was in his liberty to give him either, and
because he will not assign his part in this, it is wholly lost in the other; but this is unfriendly and unjust. To this sort of instance is to be reduced a caution against fraudulency in the ma'ter of vows.
Vitellescus vows to fast upon the last of February: but, changing his mind, believes he may commute his fasting for alms; he resolves to break his fast, and to give a ducat to the poor. But when he had new dined, he discourses the question again, and thinks it unlawful to commute, and that he is bound to pay his vow in kind; but the fast is broken; and yet if he refuses, upon this new inquest, to pay his commutation, he is a deceiver of his own soul. For in the present case, if to commute were not lawful, yet it is certain he is not disobliged; and, therefore, he is to pay his commutation, because it was decreed in the time of a probable conscience; and not being in itself unlawful, though it be now supposed to be insufficient, yet it is to be accounted for, upon the stock of the first resolution of the conscience, because the state of things is not entire; and advantages are not to be taken against religion from the account and stock of our errors or delusions; and if, after this, the conscience be not at rest, it is to be quieted by other actions of repentance and amends.
Quest. But here also is to be inquired, whether a man may, to several persons, to serve distinct ends, in themselves lawful and honest, discourse of and persuade both the parts of a probability respectively? Titius woos Orestilla for his wife; she being sickly, and fearful lest she shall have no children, declines it; he to persuade her, tells her it is very likely she will, and that it will cure her indisposition. But the interest of Titius is to have no children, as being already well stored, and therefore is dissuaded by them that have power over him, not to marry Orestilla. He, to answer their importunity, tells them, it is very likely Orestilla will be barren, and upon that account he marries her because she is sickly, and unlikely to become a mother. The question is, whether this be lawful ?
I answer, 1. If he be actually persuaded of that part of the probability when he urges it, and be changed into the other when he persuades the other, there is no question but it is as lawful to say both as one ; for they are single affirmatives or negatives, and the time is but accidental to his persuasion ; yesterday this, and to-morrow its contrary are alike, while in both, or each of them, his persuasion is hearty and sincere.
2. If Titius urges both parts severally, and yet remains actually persuaded but of one of them, he may urge them as probable in themselves, disputable, and of indifferent argument and inducement, for so they are. But,
3. He must not imprint them by the efficacy of his own authority and opinion, nor speak that as certain which is at most but probable, and to him seems false; for so to do is against ingenuity and Christian sincerity; it is to make a lie put on the face of truth and become a craft; it is not honest nor noble, nor agreeing to the spirit of a Christian, and is a direct deception on one side, and an indirect prosecution of a lawful end.
An Opinion relying upon very slender Probability is not to be followed, except in the Cases of great Necessity, or great Charity.
That it is not ordinarily to be followed is therefore certain, because it cannot be supposed, but that its contradictory hath greater probability; and either he that follows this. trifle, is light of belief, or unreasonable in his choice, or his reason is to him, but as eyes to an owl or bat, half sighted and imperfect; and, at the best, not fit motive to the will. And if it could be lawful to follow every degree of probability, it were perfectly in any man's choice to do almost what he pleased, especially if he meets with an ill counsellor and a witty advocate. For, at this rate, all marriages may be dissolved, all vices excused, upon pretence of some little probable necessity; and drunkenness will be entertained as physic, and fornication as a thing allowed by some vicious persons whose wit is better than their manners; and all
books of conscience shall become patrons or indices' of sins, and teach men what they pretend against, and there shall be no such thing as checks of conscience, because few men sin without some excuse, and it were no excuse, unless it were mingled with some little probabilities ; and there were, in very many cases, no rule for conscience but a witty inventor of pretty little inducements, which rather than a man shall want, his enemy will supply to him out of his magazine of fallacies.
But that there are some cases, in which it is to be permitted, is therefore certain, because it may be necessary in some circumstances to do so, and in these cases the former impediments cannot intervene, because the causes of necessity or great charity, occurring but seldom, destroy all power or pretence of an easy deception. Anna Murrana was married to her near kinsman, Thomas Grillo, but supposed him not to be so near.
It was afterwards discovered to her, that the propinquity was so great, that the marriage was null and invalid: while this trouble was upon her, there happily comes a discreet old woman, who tells her, that, though it be true that Grillo's father was supposed to have lain with her mother, and that herself was born of that conjunction, yet she herself, being private to the transaction, did put another woman into the place of Murrana's mother, and that her mother was also deceived in the same manner; and though they thought they enjoyed each other, yet they were both cozened into more chaste embraces. Now
this the question arises, whether or no Murrana may safely rely upon so slight a testimony as the saying of this woman, in a matter of so great difficulty and concernment. Here the case is favourable. Murrana is passionately endeared to Grillo, and, besides her love, hath a tender conscience, and if her marriage be separated, dies at both ends of the evil, both for the evil conjunction, and for the sad separation. This, therefore, is to be presumed security enough for her to continue in her state.
Like to this is that of a woman in Brescia. Her husband had been contracted to a woman of Panormo, " per verba de præsenti ;” she taking her pleasure upon the sea, is, with her company, surprised by a Turk’s man of war, and is reported, first to have been deflowered, and then killed. When the sorrow for this accident had boiled down, the gentleman marries a maid of Brescia, and lives with her some years ; after which she hears that his first spouse was not killed, but alive and in sorrow in the isle of Malta, and therefore that herself lived in a state of adultery, because not she, but the woman in Malta, was the true wife to her husband. In this agony of spirit, a mariner comes to her house, and secretly tells her, that this woman was indeed at Malta, but lately dead, and so the impediment was removed. The question now arises, whether, upon the taking away this impediment, it be required that the persons already engaged should contract anew? That a new contract is necessary, is universally believed, and is almost certain (as in its proper place will be made to appear); for the contrary opinion is affirmed but by a very few, and relies but upon trifling motives, requiring only the consent of either of the parties as sufficient for renewing of the contract. But this being but a slender probability, ought not to govern her; she must contract anew by the consent of her husband, as well as by her own act.
But now the difficulty arises; for her husband is a vicious man, and hates her, and is weary of her, and wishes her dead; and if she discover the impediment of their marriage, and that it is now taken away, and, therefore, requires him to recontract himself, that the marriage which was innocently begun, may be firm in the progression, and legally valid, and in conscience; she hath great reason to believe that he will take advantage of it, and refuse to join in a new contract. In this case, therefore, because it is necessary she should, some way or other, be relieved, it is lawful for her to follow that little probability of opinion which says, that the consent of one is sufficient for the renovation of the contract. And in this case, all the former inconveniences mentioned before do cease: and this is a case of favour in behalf of an innocent marriage, and in favour of the legitimation of children, and will prevent much evil to them both. So that although this case hath but few degrees of probability from its proper and intrinsical causes, yet by extrinsical and collateral appendages, it is grown favourable, and charitable, and reasonable: it is almost necessary, and, therefore, hath more than the little probabilities of its own account..
One case more happens, in which a small probability may be pursued, viz. when the understanding hath not time to consider deeply, and handle the question on all sides ; then that which first offers itself, though but mean and weak, yet if it be not against a stronger argument at the same time presented, it may suffice to determine the action ; for in case the determination prove to be on the wrong side, yet the ignorance is involuntary and unchosen.
These rules are concerning a conscience that is probable by intrinsical motives, that is, by reason, whether the reason be direct or collateral. But because the conscience is also probably moved in very many cases, by authority, which is an extrinsical motive, this is also to be guided and conducted.
Multitude of Authors is not ever the most probable Inducement, nor doth it in all Cases make a safe and probable Conscience.
Following a multitude is sometimes like the grazing or running of a herd, “Non quo eundum est, sed quo itur," “ not where men ought, but where they use to go:” and, therefore, Justiniana, in compiling of the body of the Roman laws, took that which was most reasonable, not that which was most followed; “ Sed neque ex multitudine auctorum quod melius et æquius est judicabile: cum possit unius forsan, et deterioris sententia multos et majores aliqua in parte superare:”
66 The sentence of one, and of a meaner man, may sometimes outweigh the sayings of a multitude of greater persons." 66 Nam testibus se, non testimoniis crediturum rescripsit imperator.” Sometimes one witness is better than twenty testimonies'; that is, one man, good and pious, prudent and disinterested, can give a surer sentence than many men, more crafty and less honest. And in the Nicene council', when the bishops were purposing to dissolve the priests’ marriages, Paphnutius did not follow the
• L. p. ver. Sed neque C. de veteri jure enucleando.