the benefit of the present and following ages it is most just that he should from the hands of Princes or States receive a Priviledge for the sole impression that he may recover with advantage the deep expence he hath beene at Otherwise some Interloper may perhaps underhand fall upon the work at a lower rate and undoe the first editor whose industry care and cost shall thus be recompenced with the ruine of himselfe and his posterity as were too easie to instance If a man have by notable dexterity of wit and art and much labour and charge after many experiments attained to the skill of making some rare engine of excellent use for the service of his Prince and Countrey as some singular water worke or some beneficiall instrument for the freeing of navigable rivers from their sandy obstructions it is all the reason in the world that by the just bounty of Princes he should be so far remunerated as that he alone may receive a patent of enjoying a due profit of his owne invention But how farre it may be lawfull for a Prince not onely to gratifie a well deserving Subject with the fee of his owne devise but with a profit arising from the sole sale of marketable commodities through his Kingdome or whether and how farre in the want of monies for the necessary service of his State he may for the publique use raise set or sell monopolies of that kind is diversly agitated by Casuists and must receive answer according to the absolutenesse or limitation of those Governments under which they are practised But with this that where this is done there may be great care had of a just price to be set upon the commodities so restrained that they be not left to the lawlesse will of a priviledged ingrosser nor heightned to an undue rate by reason of a particular indulgence This may be enough for authoritative Monopolies The common sort of offensive practices this way are private and single or conventionall and plotted by combination The former as when some covetous extortioner out of the strength of his purse buyes up the whole lading of the ship that he may have the sole power of the wares to sell them at pleasure which there is no feare but he wâ—ll doe with rigour enough The true judgment of which action the degrees of the malignity of it must be fetcht as from the minde so from the management of the buyer as being so much more sinfull as it partakes more of oppression The latter when some brethren in evill conspire to prevent the harvest to buy up or hoord up the graine with a purpose to starve the market and to hatch up a dearth A damnable practice in both kindes and that which hath of old beene branded with a curse neither lesse full of justice than uncharitablenesse and that which cryes aloud for a just punishment and satisfactory restitution I cannot therefore but marvaile at the opinion of learned Lessius which he fathers also upon Molina that too favourably minces the hainousnesse of this sin bearing us in hand that it is indeed an offence against charity and common profit but not against particular Justice His reason To buy that corne saith he could not be against justice for he bought it at the current price Nor yet to sell it could be against justice because he was not tyed out of justice at that time to bring it forth to sale When he might easily have considered that it is not the mere act of buying or of not selling that in it selfe is accused for unjust but to buy or not to sell with an intention and issue of oppressing others and undue enriching themselves by a dearth For what can be more unjust then for a man to indevour to raise himself by the affamishing of others Neither can it serve his turne to say by way of excuse that the multitude of buyers may be the cause of a dearth and yet without sin since they doe rather occasion then cause a scarcity and are so farre from intending a dearth in making their market that they deprecate it as their great affliction And if by his owne confession those who either by force or fraud hinder the importation of corne that a dearth may continue are guilty of injustice and are bound to make restitution both to the Commonwealth in giving cause to raise the price as also to the Merchant whom they have hindered of his meet gaine how can those be liable to a lesse sin or punishment that either buy up or wilfully keep in their graine with a purpose to begin and hold on a dearth and what lesse can it be then force or fraud that by their crafty and cruell prevention the poor are necessitated to want that sustenance whereby their life should be maintained Wise Solomon shall shut up this Scene for me He that with holds corn the People shall curse him but blessings shall be upon the head of him that selleth it Prov. 11. 26. CASE VI. Whether and how farre doth the fraudulent bargaine binde me to performance HOw farre in matter of law you must advise with other Counsaile but for matter of conscience take this Is the fraud actively yours done by you to another or else passively put by another upon you If the former you are bound to repent and satisfie either by rescinding the match or by making amends for the injury If the latter wherein did the fraud lye If in the maine substance of the thing sold the bargaine is both by the very law of nature and in conscience void yea indeed not at all as if a man have sold you copper lace for gold or alchymie-plate for silver the reason is well given by Casuists There is no bargaine without a consent and here is no consent at all whiles both parties pitch not upon the same subject the buyer propounds to himselfe gold and silver the seller obtrudes copper and Alchymie the one therefore not buying what the other pretended to sell here is no bargaine made but a mere act of cozenage justly liable to punishment by all lawes of God and man But if the fraud were onely in some circumstances as in some faulty condition of the thing sold not before discerned or in the over-prizing of the commoditie bought the old rule is Caveat emptor You must for ought I know hold you to your bargain but if that faulty condition be of so high a nature that it marres the commoditie and makes it uselesse to the buyer the seller being conscious of the fault is injurious in the transaction and is bound in conscience to make satisfaction and if he have willingly over-reacht you in the price in a considerable proportion is guilty of oppression It is very memorable in this kinde that Cicero relates to us of a fraudulent bargaine betwixt Canius a Roman Knight and Orator and one Pythius a Banker of Syracuse Canius comming upon occasion of pleading to the city of
done in the managing of publique hostility that some confident Cavalâ—er out of meere bravery of spirit craves leave to put himselfe forth before both Armies and as in way of preface to an ensuing battaile bids defiance to any Antagonist An act of more valor than judgement whereof the undertaking is void of warrant and the issue lightly of successe whiles it pleaseth God commonly to punish presumption with a foyle and the ominous miscarriage of one proves a sad discouragement to many And if single fortitude be not triable this way much lesse Justice in causes litigious to make the sword arbiter of such differences were no better than to revive the old Ordalian triall used by our Heathen Ancestors Sith God hath no more ordained nor promised to blesse the one than the other And reason it selfe tells us in how ill a condition that righteous cause is which must be carried by the sharper weapon the stronger arme the skilfuller fencer Now whereas there are two acts as introductions into the field a Challenge and an Acceptation both of them have their guilt but the former so much more as it hath in it more provocation to evill I cannot therefore but wonder at and cry downe the opinion of Bannez and Cajetan that a man slandered by an unjust accuser may justly challenge him the field and vindicate himselfe by the sword A Doctrine which if it were allowed and accordingly practised besides that it would destroy the course of justice and wrest revenge out of the hands of the Almighty were enough to make the world an Aceldama For who would not be his owne Judge for the Accusation and his owne Executioner for the revenge There may yet seeme more innocence in the Acceptation which makes shew of a meere passive nature and appeares to be extorted by the insolence of a provoking adversary whose pressures are wont to receive such construction as that the challenged party refusing upon what ground soever is in the vulgar opinion proclaimed for base and recreant and I must needs confesse the irritation diminisheth the offence but withall however the Spanish and Italian Casuists whose Nations are wont to stand a little too highly upon the points of a mis called honour are wont to passe faire interpretations of the matter I cannot but find it deeply guilty also for what is this other than a consent to sin by engaging in blood which by a man wise and conscionable might be turned off with a just contempt without imputation of cowardise since the plea of conscience is able to beare downe the vaine fancies of idle sword-men or if that will not be taken the false blurres that are cast upon a worthy mans reputation by vulgar breath deserve no entertainment but scorne or lastly other means lie open to both parts for the proofe of a questioned valour which in a lawfull way the challenged is ready to embrace he walks not unprovided about the businesse of his calling if he be fairely set upon on equall termes he shall make no doubt to defend himselfe But to make a formall businesse of a quarrell on either part and to agree upon a bargaine of blood-shedding is wicked and damnable and though both should come fairely off yet the very intention to kill is murther This case is so cleare that the Counsell of Trent hath thought fit to denounce heavy sentences and inflict sharp censures upon Emperours Kings States and Potentates that shall give allowance to Duels within their Dominions pronouncing them ipso jure excommunicate and depriving them of those towns cities lands if held of the Church where such unlawfull acts are made And that those who either act or patronize and by their presence assist countenance or abett such combats shall incurre the sentence of excommunication the losse of all their goods and perpetuall infamy and if they dye in such quarrell shall as selfe-murtherers be debarred the priviledge of Christian buriall Briefly therefore neither your justice nor your honour may depend upon the point of private swords and if there can be no other remedy you must rather suffer in either than hazard your soule CASE III. Whether may it be lawfull in case of extremity to procure the abortion of the child for the preservation of the mother I Feare want of true judgement renders too many of the weaker sexe grossely culpable in matter of willing abortion whiles being not well principled either in nature or grace they think it not unlawfull or at least venially so whether out of the feare of painefull childe-birth or for the avoidance of too great a charge to prevent the fulnesse of their conceptions and therefore either by over vehement motion or unwholsome medicine are not unwilling to fore-stall nature and to free themselves early of that which might in time prove their burden Wherein they little know how highly they offend the Majesty of God in destroying his potentiall creature and how heavy weight of guilt they lay upon their soules whiles they indeavour to give an undue ease to their bodies Your question supposes an extremity and surely such it had need to be that may warrant the intention of such an event For the deciding whereof our Casuists are wont to distinguish double both of the state of the conception and of the nature of the receipt In the former they consider of the Conception either as it is before it receive life or after that it is animated Before it receive life they are wont to determine that howsoever it were no lesse than mortall sin in a Physitian to prescribe a medicinall receit to cause abortion for the hiding of a sinne or any outward secular occasion yet for the preservation of the life of the mother in an extreme danger I say before animation it might be lawfull But after life once received it were an hainous sin to administer any such mortall remedy The latter Casuists are better advised and justly hold that to give any such expelling or destructive medicine with a direct intention to work an abortment whether before or after animation is utterly unlawfull and highly sinfull And with them I cannot but concur in opinion For after conception we know that naturally followes animation there is only the time that makes the difference which in this case is not so considerable as to take off a sinne That of Tertullian comes home to the point which both Covarruvias and Lessius urge to this purpose Homicidii festinatio est prohibere nasci It is but an hastening of murder to hinder that which would bee born Homo est qui futurus est It is a man that would be so c. Upon this ground we know that in a further degree of remotenesse a voluntary selfe pollution hath ever beene held to have so much guilt in it as that Angelus Politianus reports it as the high praise of Michael Verrinus that he would rather dye than yeild to it how much more when there is
next to the publique executioners so certainly those busie spirited-men which out of the itching humour of medling run from house to house with tales of private detraction may well challenge the next roome in our detestation This together with the other is that which God so strictly forbids in his Law Levit. 19. 16. Thou shalt not goe up and downe as a Tale-bearer amongst thy people neither shalt thou stand against the bloud of thy neighbour I am the Lord. A practice which wise Solomon though a great King and as one would think out of the reach of tongues cryes downe with much feeling bitternesse Prov. 18. 8. The words of the Tale bearer are as wounds and they goe downe into the innermost parts of the belly No lesse than five severall times in his divine Proverbs inveighing sharply as if himselfe had been stung in this kinde against these close back-biting calumniations Shorlty then accuse when you are forced either by the foulenesse of the fact or the necessity of your duty otherwise reserve your tongue for better offices CASE VIII Whether a prisoner indicted of a felonious act which he hath committed and interrogated by the Judge concerning the same may stand upon the deniall and plead Not guilty THe Casuists vary and out of respect to their owne Lawes are much perplexed in their resolutions making the great scruple to be in the Juridicall interrogations which if the Judge have not proceeded in the due forme of Law required in such cases may warrant the offenders deniall and secondly making difference of the quality of the offence and danger of the punishment which if no lesse than capitall may say they give just ground to the accused party either to conceale the truth or to answer with such amphibolies and equivocations as may serve to his owne preservation in which course naturall equity will beare him out which allowes every man to stand upon his owne defence And the case I perceive is aggravated in forraigne parts as by the Rack so by an Oath administred to the person accused which they call Juramentum calumniae which Lessius justly calls a spirituall torture by the vertue whereof hee solemnely urged not to deny what hee knowes or believes to be true concerning the businesse questioned A practise which I cannot blame Lessius if he professe to wish that the Pope and all secular Princes would joyne together to abrogate as being an evident occasion of much perjury To lay down and determine the case as it stands with us in our ordinary proceedings of justice it must be premised 1. To deny a knowne truth and to averre a willfull lye cannot be other than a sin 2. There is a vast difference betwixt concealing a truth and denying it 3. It may be sometimes lawfull to conceale some Truths though never lawfull to deny or contradict them 4. No man can be bound directly to accuse himselfe 5. It is consonant to naturall equity that a man for the saving of his life should use the helpe of all evasions that are not sinfull 6. It cannot be sinfull to put himselfe upon a legall triall in a case importing his life 7. There is no place for a legall triall where there is an absolute confession of guiltinesse These positions being pre-required I say that it is lawfull for the prisoner though convinced in his conscience of the fact yet to plead Not guilty to the Indictment at the Barre for as much as he doth therein according to the sense both of the Judge and Jury onely hide and keepe back that Truth the finding out and eviction whereof lyes upon their further search and proofe so as he doth in pleading Not guilty in effect as good as say What ever I finde in my selfe I have no reason to confesse my guiltinesse I stand upon my lawfull defence and cast my selfe upon my just tryall Yielding my selfe onely so far guilty as your evidence and proofes can make me let Justice passe upon me I have no reason to draw on my owne condemnation The plea thus construed is lawfull and just wherein not the shuffling equivocations of the offendor but the upright verdict of a legall Jury must carry the cause to which purpose that which sounds as a deniall in the accused is nothing else but a professed referring himselfe to a juridicall triall of that fact which he is not bound to confesse But when the hand of God hath once found out the man in his sin and he finds himselfe legally convinced of his crime it greatly behoves him as Joshuah charged Achan after the lot had discovered his sin to give glory to God in a free and full confession of his wickednesse and to be more open and ingenuous in his acknowledgement than he was close and reserved in his plea wherein as he shall discharge his conscience to that great and holy God whom he hath offended so he shall thus tender some kind of poore satisfaction to that Society of men whom hee hath scandalized by his crime In which regard I cannot but marvell at the strange determination of learned Azpilcueta the Oracle of Confessaries who teaches that the prisoner who being rightly interrogated by the Judge stood stiffly in deniall of the fact and is upon his Condemnation carried to his execution is not bound at his death to confesse the crime to the world if he have before secretly whispered it in the ear of his ghostly father and by him received absolution A sentence that allowes the smothering of truthes and the strangling of just satisfaction to those who are concerned as patience in the offence and lastly highly injurious to publique Justice whose righteous sentence is by this meanes left questionable and obnoxious to unjust censure How much more requisite were it that a publique confession should in this case save the labour of a private whereby certainly the soule of the offender would be more sensibly unloaded justice better vindicated more glory would accrew to God and to men more satisfaction But however it be lawfull for the accused to stand upon these points of legality in the proceedings against him yet for my owne part should I be so farre given over as to have my hand in bloud and thereupon be arraigned at the barre of publique Justice I should out of just remorse be the first man that should rise up against my selfe and which in other mens cases were utterly unlawfull be my owne Accuser Witnesse and Judge and this disposition I should rather commend in those whose conscience hath inwardly convicted them for haynously criminous that since they had not the grace to resist so flagitious a wickednesse they may yet endeavour to expiate it before men with an ingenuous confession as before God with a deepe and serious repentance CASE IX Whether and how farre a man may take up armes in the publique quarrell of a war WArre is no other than a necessary evill necessary in relation to peace onely
formerly insisted on For though his words on the mount were in a way of doctrinall assertion yet afterwards the same words were used by him in way of a satisfactory answer to the Pharises question concerning causes of divorce professedly resolving that there could be no allowable ground of such separation except fornication What words can be more plain It is but a shift to say as the Cardinall doth that our Saviour here meant only to expresse the proper cause of the separation of married persons which is the breach of marriage faith as having no occasion to speak of those generall grounds which reach to the just sundring of all humane societies such as Heresie and Infidelitie which are enough to unglew all naturall and civill relations betwixt father and son master and servant husband and wife For it is clear that neither question nor answer were bounded with any particularities The Pharisee asks Whether for every cause Our Saviour answers For no cause but fornication And it is spoken beside the book that child or servant should or may forsake parent or master in case of heresie or infidelity S. Paul teacheth other Doctrine Let as many servants as are under the yoke of bondage count their infidell masters worthy of all honor 1 Tim. 6. 5. not worthy therefore of desertion and disclamation And if the servants may not shake off the bonds of duty much lesse may the son brake or file off the bonds of nature and as for the matrimoniall knot how too sure it is to be loosed by infidelity it self let the Apostle speak If any brother hath a wife that beleeveth not and she be pleased to dwell with him let him not put her away 1 Cor. 7. 12. And the woman which hath an husband that beleeveth not and if he be pleased to dwell with her let her not leave him ver 13. And if even Infidelity have not power to dis-oblige the wife or husband much less Heresie In this pretended case therefore to separate from board and bed is no better then a presumptuous insolence It is the peremptory charge of Christ What God hath joyned together let not man put asunder Mat. 19. 6. In all lawfull marriages it is God that joyns the hands and hearts of the Married How dare man then undoe the work of God upon devises of his own Had the Lord ever said If thy wife be a wilfull mis-beleever rid thy hands of her this separation were just but now that his charge is clean contrary what an impious sauciness is it to dis-joyn those whom God hath united As therefore it is not in the power of any third person upon any whatsoever pretence violently to break the sacred bond of Marriage so neither may the husband or wife enthral each other by a wilfull desertion whether upon pretext of religion or any secular occasion In which cause what is to be don must come under a further disquisition Certainly it was never the intention of the holy and wise God by vertue of that which was ordained for mans comfort and remedy of sin to binde him to a remedilesse misery which must necessarily fall out if upon the departure of an unbeleeving or hereticall yoke-fellow the relict party must be tyed up to a perpetuall necessity of either containing if he can or if he can not of burning The wise Doctor of the Gentiles well fore-saw the dangerous inconvenience that must needs hereupon ensue and hath given order for prevention accordingly But if the unbeleeving depart let him depart A brother or a sister is not under bondage in such cases but God hath called us to peace 1 Cor. 7. 15. Not that it is free for a man or woman so forsaken to carve him or her self of redresse what an infinite confusion would follow upon such licentiousness but that after long and patient expectation and all probable means used for the reduction of the party deserting recourse be had as to the last refuge to publique ecclesiastical authority which is the fittest to manage these matrimoniall affairs in whose power it may be either by grave admonitions and just censures to bring back the offendor to his duty or upon his continuing contempt to set a day for the publication of the just freedom of the forsaken wherein they shall doe no other then execute that Apostolike sentence for exemption from an unjust bondage and providing for a just peace CASE III. Whether after a lawfull Divorce for Adultery the innocent party may marry again ALthough Matrimony be not according to the Romish tenet one of those Sacraments which imprint an indeleble Character in the receiver yet it hath as they hold such a secret influence upon the soul as that it leaves a perpetuall bond behind it never to be dissolved till death So as those offenders which by just censure are separated from the board and the bed cannot yet be freed from the bond of marriage upon this ground it is that they bar the innocent party from the benefit of a second marriage as supposing the obligation of the former still in force In the ordinary Bills of the Jewish divorce the repudiated wife had full-scope given her of a second choice as the words ran She was to be free and to have power over her own soul to goe away to be married to any man whom she would They were not more liberall then our Romish divorcers are niggardly The Jewish divorce being upon unwarrantable cause made their liberality so much more sinfull as their divorce was more unjust for the divorced woman was still in right the lawfull wife of that unrighteous husband that dismissed her the Romish doctrine makes their strait-handednesse so much more injurious as the cause of separation is more just Even this question also is expresly determined by our Saviour in his answer to the Pharisee Whosoever shall put away his wife except it be for fornication and marrieth another committeth adultery Mat. 19. Lo then he that for so just a cause as fornication putteth away his wife and marrieth another committeth not adultery the exception manifestly implies so much both in reason and common use neither indeed are the words capable of any other probable sense That which Bellarmine would fasten upon it referring the exception to the former clause of dismission only so as it might be lawfull to divorce only for fornication but not to marry after divorce cannot stand without a supply of words of his own which God never alow'd him to intersert and besides utterly destroies the sense casting such a doctrine upon our Saviour as he would hate to own for except that restraint be refered to the marrying again the sense would run thus whosoever puts away his wife commits adultery which stands not with truth or reason sith it is not the dismission that is adulterous but the marryage of another It is therefore the plain drift of our Saviour to teach the Pharisee that the marriage of a second wife