riage, if it be destructive of their health, or against his nature; and this excuse was allowed amongst the Romans even where the paternal power was at the highest. Solent qui coguntur a patribus ut uxores ducant, illa dicere, Non sumus etiam nunc apti nuptiis. It is not fit to require them to marry that hate, or are unable to do the offices of that state. 2) If the father offer to his child a dishonest or filthy person, unequal, or unfit; that is, when it is notoriously or scandalously so when the person is intolerably and irreconcilably displeasing, then the command is tyranny. The son is bound to obey his father commanding him to marry; Sed enim si imperet uxorem ducere infamem, propudiosam, criminosam, non scilicet parendum, said A. Gellius; but not if he offers to his child an infamous, a dishonest person.' And so the law provides in behalf of the daughter, that she ought not to be compelled to marry an infamous man; l. Sed qua patris, ff. de sponsal.", and so Harmenopulus renders it, róтe dè μóvov ἀντιλέγειν δύναται (ὑπεξουσία) ὅτε τοῖς τρόποις ἀνάξιον καὶ αἰσχρὸν avtĥ μvnoteúetai, 'she that is under her father's power can then only refuse her father's command, when he chooses for her a man that is unworthy in his manners, and a filthy person:' and indeed in this case she hath leave to refuse the most imperious command of an angry father. Son and daughter in this have equal right: ovdề vûv γεγάμηκεν, ἀλλὰ καταναγκαζόμενος καὶ βιαζόμενος ἠρνήσατο : so Lucian though his father would have compelled and forced him to marry a wife, yet he refused it:' and he might lawfully, when he offered him a strumpet. § 34. But there is another sort of persons which are called turpes, 'filthy' or 'hateful;' and that is, such as are deformed and intolerably ugly. Μόνους γοῦν τοὺς μὴ καλοὺς ὀνομάζομεν αἰσχροὺς, saith Lucian', 'we call them filthy that are not fair or comely.' But in this sense, if the father offers a husband to his daughter, she hath not liberty to dissent, but only to petition for liberty: for beauty is not the praise of a man, and he may be a worthy person, though of an ill shape, and his wit and manners may be better than his countenance. And there is no exception in this, but that if the daughter hath used all means she can to endure him, and cannot obtain it, she can only then refuse when she can be sure that with him she can never do her duty; of which because she cannot be sure beforehand, because his worthiness may overcome the air and follies of her fancy, therefore the unhandsomeness of a man is not alone a sufficient cause for a z Senec. controv. i. 6. [tom. iii. p. 124.] Lib. ii. c. 7. [§ 20.] C b [Digest. lib. xxiii. tit. i. 1. 12.] [Prompt. jur., lib. iv. tit. 1. § 6. p. 281. 4to. Genev. 1587.] 4 Matthæus Monachus legit ὑπεξούσιοι, ut filium etiain comprehendat: sed male, quia eo loci JC. separatim loquitur de filio et filia, et de filio controversia non erat. [Respons. matrim. apud Leunclav. jus. Græco-Rom., lib. viii. tom. i. p. 501.] Harmenopulo a. consentiunt βασιλικά, lib. xxviii. tit. 1. [§ 10. tom. iv. p. 215.] In dial. meretr. [vii. cap. 4. tom. viii. f In Charidemo. [cap. 26. tom. ix. p. 274.] p. 222.] daughter to refuse her father's earnest commands. But yet in this case though a father have authority, yet a good father will never use it, when it is very much against his daughter, unless it be also very much more for her good. But a son hath in this some more liberty, because he is to be the head of a family, and he is more easily tempted, and can sooner be drawn aside to wander, and beauty or comeliness is the proper praise of a woman; comeliness and good humour, forma uxoria, and 'a meek and quiet spirit' are her best dressings, and all that she can be good for in herself; and therefore the ugliness of a woman will sooner pass into an incapacity of person, than it can do in a man. But in these cases, as children should not be too forward to dispute the limits of their father's power, lest they mistake their own leave or their father's authority; so fathers also should remember what the lawyers say, Patria potestas in pietate debet, non in atrocitate consistere; the father's power consists not in the surliest part of empire, but in the sunshine side, in the gentlest and warmest part. Quis enim non magis filiorum salutem quam suam curat? saith Tertullian". He is an ill father that will not take more care for the good of his child than his own humour. § 35. The like is to be said in case the father offers to his child a person of a condition much inferior. For though this difference is introduced principally by pride and vanity in all the last ages of the world, and nobility is not the reward of virtue, but the adornment of fortune, or the effect of princes' humours, unless it be in some rare cases; yet now that it is in the humours and manners of men, it is to be regarded, and a diamond is really of so much value as men will give for it: and therefore a son or daughter may justly refuse to marry a person whose conjunction will be very dishonourable and shameful: but at little differences children must not start. If the nobility marries into the family of a merchant, the difference is not so great, but that portion makes up the want of great extraction. For a husband or a wife may be γενναῖος ἐκ βαλαντίου, noble by their wealth;' so the Greek proverbi means and old Ennius translating of Euripides his Hecuba, makes wealth to be nobility, Hæc tametsi perverse dicas, facile Achivos flexeris. When the rich and the ignoble speak the same things, the rich man. shall prevail when the ignoble shall not. Κεῖνο δ' ἰσχύει μέγα πλοῦτος, λαβών τε τοῦτον εὐγενὴς ἀνήρ'. L. 'D. Adrianus,' ff. ad legem Pompeian. de partic. [digest., lib. xlviii. tit. 9. 1. 5.] h Advers. Marcion. [lib. ii. cap. 15. p. 389.] [Gaisford, parom. Græc., pp. 33, Wealth makes nobility. And therefore in such cases, if the sons or daughters refuse the command of their father, it is to be accounted rebellion and disobedience. But this whole enquiry is well summed up in those excellent words of Heliodorus, Εἰ μὲν γὰρ ἔδει τῷ τῆς ἀρχῆς ἀποχρήσασθαι νόμῳ, πάντως ἐξήρκει μοι τὸ βούλεσθαι βιάζεσθαι γὰρ οἷς ἐξὸν, τὸ πυνθάνεσθαι περιττόν· εἰ δὲ γάμος τὸ γινόμενον, τὸ παρ ̓ ἀμφοτέρων βούλημα συννεύειν ἀναγκαῖον • if the fathers will use the utmost power of law, it is enough for them to say, it is their will: and it is to no purpose to ask where they have power to compel. But when there is a marriage to be contracted, it is fit that they both consent.' There are some enquiries relating to the title of this chapter, which would be seasonable enough here to be considered, concerning the powers of husbands over their wives: but because the matrimonial questions and cases of conscience are very material and very numerous, and of all things have been most injured by evil and imperfect principles and worse conduct, I thought it better to leave this to fall into the heap of matrimonial cases, which I design in a book by itself, if God shall give me opportunity, and fit me with circumstances accordingly. CHAP. VI. OF THE INTERPRETATION, DIMINUTION, AND ABROGATION OF HUMAN LAWS. THERE are seven ways of the changing of human laws, so that the obligation of conscience is also changed: I. Equity, II. Judicial interpretation, III. A contrary, or a ceasing reason, IV. Dispensation, V. Commutation, VI. Contrary custom, VII. Direct revocation or abrogation. Of these I am to give account in this chapter, that the conscience having already seen her obligation, may also discern when she enters into liberty. SECT I.-OF EQUITY. RULE I. WHEN THE LETTER OF THE LAW IS BURDENSOME AND UNJUST, THE MEANING AND CHARITY OF THE LAW DOES ONLY OBLIGE THE CONSCIENCE. § 1. Scire leges non est verba earum tenere, sed vim ac potestatem, quia prior atque potentior est quam vox mens dicentis, say the lawyers; the mind of the lawgiver is more to be regarded than his words. For words change, and things change; and our expressions sometimes the more literal they are, the more obscure they are, because there are more words than things, and the circumstances and appendages are the best commentary. Leges perquam egregiæ res sunt; sed is qui legibus utitur said Menander. It is not the office of a judge or prince, but of a sycophant, to be exact in the use of his laws: but there is abatement a [Digest., lib. i. tit. 3. 1. 17.] * [Καλὸν οἱ νόμοι σφοδρ ̓ εἰσίν· ὁ δ ̓ ὁρῶν τοὺς νόμους λίαν ἀκριβῶς συκοφάντης φαίνεται. — Menand. apud Stob. floril., tit. xliv. 8.] and allay to the words by the purpose of him that spake them. For nullam rem neque legibus, neque scriptura ulla, denique ne in sermone quidem quotidiano atque imperiis domesticis recte posse administrari, si unusquisque velit verba spectare, et non ad voluntatem ejus qui verba habuerit accedere; for nothing can be rightly administered either in laws or common talk, in public or domestic governments, if we regard the words more than the mind of him that spake them.' There are some tacit exceptions in all laws that would not be tyrannical. Quædam etiamsi nulla significatione legis comprehensa sint, natura tamen excipiuntur, saith Quintilian; 'natural reason excepts some things which are not excepted in the law.' And it was counted a fierce and cruel piece of importune justice in Basilius Macedo the emperor when a stag fastened his horn in the prince's belt and tossed him up with very much danger, one of his guard with a falcheon cut the prince's girdle and rescued him from his sad calamity; but he caused the poor man to be put to death, because by the law it was capital to draw a sword upon the prince. The law could never intend to make it death to save the prince's life. was a necessity in this case; and if it had been like a fault, yet here it had been excusable; for 'necessity excuses whatever it compels toe.' Here § 2. Now this happens in the matter of penal laws principally; for those equities which are alleviations of duty, I shall consider under the other heads: but in penalties it is not only the charity but the justice of the law, that the subject should neither be snared by an unwary or obscure letter, nor oppressed by an unequal punishment. Quid tristes querimoniæ, Si non supplicio culpa reciditur? Laws intend not to cut away the life or to pare away the goods of the subject, but to cut off his crimes, to restrain him from that which the law would not have him to do. This in propriety of speaking is justice: but equity although it signifies all that reasonableness by which the burden of laws is alleviated, and so will comprehend the six first heads, yet here I mean it in the particular sense, that is, the easing of punishments, and the giving gentle sentences; not by remission of what is justly incurred, for that is clemency, but by declaring the delated person not to be involved in the curse of the law, or not so deeply; not to punish any man more than the law compels us; that's equity. And to this many rules in the law do minister. §3.1) Non debet aliquis considerare verba, sed voluntatem, cum Cicero, lib. ii. de invent. [cap. 47.] [Declain. cccxv.] d [Zonar. annal., lib. xvi. cap. 11. Compare serm. xxiii. vol. iv. p. 617.] [Necessitas.. quicquid cogit excusat.-Sen., lib. iv. controv. 27. tom. iii. p. 321.] Horat., 1. iii. od. 24. [lin. 33.] |