תמונות בעמוד

principal matter; but an inculpable error in the essentials will. 3. Except when the law of the land or the common good, doth otherwise overrule the case: for then you may be obliged by that accident. In divers cases the rulers may judge it necessary, that the effect of the contract shall depend upon the bare words, or writing, or actions; lest false pretences of misunderstanding should exempt deceitful persons from their obligations, and nothing should be a security to contractors. And then men's private commodity must give place to the law and to the public good. 4. Natural infirmities must be numbered with faults, though they be not moral vices, as to the contracting of an obligation, if they be in a person capable of contracting. As if you have some special defect of memory, or ignorance of the matter which you are about. Another who is no way faulty by overreaching you, must not be a loser by your weakness. For he that cometh to the market, or contracteth with another that knoweth not his infirmity, is to be supposed to understand what he doth, unless the contrary be manifest: you should not meddle with matters which you understand not: or if you do, you must be content to be a loser by your weakness. 5. Yet in such cases, another that hath gained by the bargain, may be obliged by the laws of equity and charity, to remit the gain, and not to take advantage of your weakness; but he may so far hold you to it, as to secure himself from loss; except in cases where you become the object of his charity, and not of commutative justice only. Quest. v. ‘Is a drunken man, or a man in a transporting passion, or a melancholy person, obliged by a contract made in such a case ?” Answ. Remember still, that we are speaking only of contracts about matters of profits or worldly interest; and not of marriage or any of another nature. And the question as it concerneth a man in drunkenness or passion, is answered as the former about culpable error; and as it concerneth a melancholy man, it is to be answered as the former question, in the case of natural infirmity. But if the melancholy be so great as to make him incapable of bargaining, he is to be

esteemed in the same condition as an idiot, or one in deliration or distraction. Quest. v1. “But may another hold a man to it, who in drunkenness or passion maketh an ill bargain, or giveth or playeth away his money; and repenteth when he is sober 2’ Answ. He may (ordinarily) take the money from the loser, or him that casteth it thus away; but he may not keep it for himself: but if the loser be poor, he should give it to his wife or children whom he robbeth by his sin: if not, he should either give it to the magistrate or overseer for the poor, or give it to the poor himself. The reason of this determination is, because the loser hath parted with his property, and can lay no further claim to the thing; but the gainer can have no right from another's crime: if it were from an injury, he might, so far as is necessary to reparations: but from a crime he cannot : for his loss is to be estimated as a mulct or penalty, and to be disposed of as such mulcts as are laid on swearers and drunkards are. Only the person by his voluntary bargain, hath made the other party instead of the magistrate, and authorized him (in ordinary cases) to dispose of the gain, for the poor or public good. Quest. vii. “Am I obliged by the words or writings which usually express a covenant, without any covenanting or self-obliging intention in me, when I speak or write them?” Answ. Either you utter or write those words, with a purpose to make another believe that you intend a covenant; or at least by culpable negligence, in such a manner as he is bound so to understand you, or justified for so understanding you: or else you so use the words, as in the manner sufficiently to signify that you intend no covenant or self-obligation. In the former case you bind yourself (as above said); because another man is not to be a loser, nor you a gainer or a saver by your own fraud or gross negligence. But in the latter case you are not bound, because an intent of self obliging is the internal efficient of the obligation; and a signification of such an intent, is the external efficient, without which it cannot be. If you read over the words of a bond, or repeat them only in a narrative, or ludicrously; or if a scrivener write a form of obligation of himself, to a boy for a copy, or to a scholar for a precedent, these do not induce any obligation in conscience, nor make you a debtor to another. Thus also the case of the intent of the baptizer, or baptized (or parent) is to be determined. Quest. v1.11. ‘May a true man promise money to a robber, for the saving of his life or of a greater sum, or more precious commodity ?” Answ. Yes, in case of necessity, when his life or estate cannot better be preserved: and so taxes may be paid to an enemy in arms, or to a plundering soldier, (supposing that it do no other hurt, which is greater than the good). Any man may part with a lesser good to preserve a greater: and it is no more voluntary or imputable to our wills, than the casting of our goods into the sea to save the vessel and our lives. Quest. Ix. ‘May I give money to a judge, or justice, or court officer, to hire him to do me justice, or to keep him from doing me wrong; or to avoid persecution ?” Answ. You may not, in case your cause be bad, give any thing to procure injustice against another; no nor speak a word for it nor desire it: this I take as presupposed. You may not give money to procure justice, when the law of the land forbiddeth it, and when it will do more hurt accidentally to others than good to you; when it will harden men in the sin of bribery, and cause them to expect the like from others. But except it be when some such accidental greater hurt doth make it evil, it is as lawful as to hire a thief not to kill me; when you cannot have your right by other means, you may part with a smaller matter for a greater. Quest. x. “But if I make such a contract, may the other lawfully take it of me?’ Answ. No ; for it is now supposed that it is unlawful on his part. Quest. x 1. “But if under necessity of force I promise money to a robber, or a judge, or officer, am I bound to perform it when my necessity is over ?” Answ. You have lost your own property by your covenant, and therefore must not retain it; but he can acquire no right by his sin; and therefore some say that in point of justice you are not bound to give it him, but to give it to the magistrate for the poor; but yet prudence may tell you of other reasons ‘a fine” to give it the man himself, though justice bind you not to it; as in case that else he may be revenged and do you some greater hurt; or some greater hurt is any other way like to be the consequent; which it is lawful by money to prevent. But many think that you are bound to deliver the money to the thief or officer himself; because it is a lawful thing to do it, though he have no just title to it; and because it was your meaning, or the signification of your words in your covenant with him; and if it were not lawful to do it, it could not be lawful to promise to do it, otherwise your promise is a lie. To this, those of the other opinion say, that as a man who is discharged of his promise by him that it was made to, is not to be accounted false if he perform it not; so is it as to the thief or officer in question; because he having no right, is to you as the other that hath quit his right. And this answer indeed will prove, that it is not strict injustice not to pay the money promised; but it will not prove that it is not a lie to make such a promise with an intent of not performing it, or that it is not a lie to make it with an intent of performing it, and not to do it when you may. Though here a Jesuit will tell you that you may say the words of a promise, with an equivocation or mental reservation, to a thief or persecuting magistrate; (of which see more in the Chapters of Lying, Vows, and Perjury). I am therefore of opinion that your promise must be sincerely made, and according to the true intent of it, you must offer the money to the thief or officer; except in case the magistrate forbid you, or some greater reason lie against it, which you foresaw not when you made the promise. But the offender is undoubtedly obliged not to take the money. The same determination holdeth as to all contracts and promises made to such persons, who by injurious force constrained us to make them. There is on us an obligation to veracity, though none to them in point of justice, because they have no proper right; nor may they lawfully take our payment or service promised them. And in case that the public good unexpectedly cross our performance, we must not perform it: such like is the case 6f conquerors, and

those that upon conquest become their vassals or subjects upon unrighteous terms. But still remember, that if it be not only a covenant with man, but a vow to God, which maketh him a party, the case is altered, and we remain obliged. Quest. x 11. “But may I promise the thief or bribe-taker to conceal his fault? And am I obliged to the performance of such a promise 2' Answ. This is a promise of omitting that which else would be a duty. It is ordinarily a duty to reveal a thief and bribe-taker that he may be punished. But affirmatives bind not ‘ad semper;' no act (especially external) is a duty at all times, therefore not this, of revealing an offender's fault. And if it be not always a duty, then it must be none when it is inconsistent with some greater benefit or duty; for when two goods come together, the greater must be preferred; therefore in case that you see in just probability, that the concealment of the sinner will do more hurt to the commonwealth or the souls of men, than the saving of your life is like to do good; you may not promise to conceal him ; or if you sinfully promise it, you may not perform it. But in case that your life is like to be a greater good than the not promising to conceal him, then such a promise is no fault, because the disclosing him is no duty. But to judge rightly of this is a matter of great difficulty. If it be less than life which you save by such a promise, it oft falls out that it is a lesser good, than the detecting of the of. fence. But it will here be said, ‘If I promise not to conceal a robber, I must conceal him nevertheless; for when he hath killed me, I cannot reveal him; and I must conceal the bribe-taker; for till I have promised secresy, I cannot prove him guilty. And he that promiseth to forbear a particular good action whilst he liveth, doth yet reserve his life for all other good works: whereas if he die, he will neither do that or any other.' But this case is not so easily determined: if Daniel die, he can neither pray nor do any other good on earth. And if he live he may do much other good, though he never pray; and yet he might not promise to give over praying to save his life. I conceive that we must distinguish of duties essential to the outward part of

« הקודםהמשך »