the canon was to be obeyed, and it may be in some places it was practised upon that stock; upon any other just ground it could not, as I have already proved. Only this, it cannot be denied but in the western church where this decree and the consequent custom was quickly worn out, though it lasted longer even to this day in the Greek church, and Balsamo inveighs against the Latins for their carelessness in this article, yet there were some intervals in which by chance this decree did prevail; but it was when the bishops of Rome were so ignorant that they could not distinguish the Old testament from the New, but in some particulars did judaize. I instance in pope Zechary before mentioned, who in his decretal to Boniface the archbishop of Mentz is very curious to warn him to forbid all Christians with whom he had to do, they should abstain from some certain sorts of birds, as jack-daws, crows, and storks, but especially that Christians should eat no hares, nor beavers, nor wild horses: and the council of Worms determined something to the like purpose, not much wiser; but what was decreed then was long before reproved by S. Austin, affirming that if any Christian made a scruple of eating strangled birds in whom the blood remained, he was derided by the rest and that this thing which was useful in the infancy of the church should be obtruded upon her in her strength, is as if we should persuade strong men to live upon milk because their tender mothers gave it them as the best nourishment of their infancy.

§ 5. This thing being cleared I know no other difficulty concerning the choice of meats in particular, or the retention of the ceremonial law in general, or in any of its instances, but what will more properly be handled under other titles.

RULE III.

THE JUDICIAL LAW OF MOSES IS ANNULLED OR ABROGATED, AND RETAINS NO OBLIGING POWER EITHER IN WHOLE OR IN PART OVER ANY CHRISTIAN PRINCE, COMMONWEALTH, OR PERSON.

§ 1. EITHER the judicial was wholly civil, or it was part of the religion. If it was wholly secular and civil, it goes away with that commonwealth to whom it was given; if it was part of the religion it goes away with the temple, with the lawgivers' authority by cession to the greater, with the priesthood, with the covenant of works, with the revelation and reign of the Messias: and though the instances of this law proceeding from the wisest lawgiver are good guides to princes and commonwealths where the same reasons are applicable in

[In can. apost., lxiii., apud Bevereg. synodic., tom. i. p. 41 C.]

.

[Epist. xii. tom. iii. col. 1916 D.

b [cap. lxv. tom. v. col. 746 A.] Contr. Faust. Manich. [lib xxxü. cap. 13. tom. viii. col. 457 D.]

like circumstances of things, and in equal capacities of the subjects, yet it is wholly without obligation. In the judicial law theft was not punished with death, but with the restitution of four-fold; and unless the necessities of a republic shall enforce it, it were consonant to the design of christian religion, the interests of souls, their value and pity, that a life should not be set in balance over against a sheep or a cup. In the judicial law of Moses adultery was punished with death; but it will not be prudent for a commonwealth to write after this copy unless they have as great reason and the same necessity, and the same effect be likely to be consequent; it was highly fitting there, where it was so necessary to preserve the genealogies, and where every family had honours and inheritances and expectations of its own, and one whole tribe expected in each house the revelation of the Messias, and where the crime of adultery was infinitely more inexcusable by the permission of divorces and polygamy than it can with us. But with us, and so in every nation, many considerations ought to be ingredient into the constitution of a capital law; but they have their liberty, and are only tied up with the rules and analogies of the christian law: only the judicial law of Moses is not to be pretended as an example and rule to us because it came from a divine principle, unless every thing else fit it by which the proportions were made in that commonwealth; for although God made aprons for Adam and Eve, it would not be a comely fashion for the gallants of our age and countries. But concerning this who desires to see long and full discourses, I refer him to Guilielmus Zepperus De legibus Mosaicis, and the preface of Calvin the lawyer to his Themis Hebræo-Romana.

§ 2. But the thing in general is confessed, and the arguments now alleged make it certain; but then why it should not be so in every particular when it is confessed to be so in the general, I do not understand, since there are no exceptions or reservations of any particular in the new law, the law of christianity. But in two great instances this article hath difficulty; the one is 1) The approach of a man to his wife during her usual term of separation, 2.) The other is concerning the degrees of kindred hindering marriage; both which being taken express care of in the judicial law, and yet nothing at all said of them in the laws of Christ, are yet supposed to be as obligatory to Christians now, as to the Jews of old. Of these I shall now give account because they are of great use in the rule of conscience, and with much unquietness and noise talked of, and consciences afflicted with prejudices and authority, with great names and little reasons.

Quest.

§ 3. Whether the judicial law of mutual abstinence in the days of women's separation obliges Christian pairs?

§ 4. The judicial law declared it to be twice penal. Once it only inferred a legal uncleanness for seven days, Levit. xv. 24. But in

Levit. xx. 18, it is made capital to them both; "they shall be both cut off from the people."

§ 5. From hence Aquinas, Alexander of Ales, Bonaventure, and Scotus affirm it to be a mortal sin for a husband then to approach to her: Paludanus and Cajetan deny it; and amongst the casuists it is with great difference affirmed or denied; but with very trifling pretences, as if they were to give laws, and not to inform consciences upon just grounds of reason or religion.

§ 6. They who suppose it to be unlawful affirm this law to be ceremonial, judicial, and moral. It is ceremonial, because it inferred a legal impurity, or separation for seven days. It is judicial, by its appendent sentence of death, and a capital infliction. It is moral, because it is against charity, as being hurtful to the child in case any be begotten by such approaches. The whole ceremoniality of it is confessedly gone, but the punishment of it in the judicial law being capital they urge it as an argument that it is moral. So that the whole weight lies upon this: that which was by the law of God punished with death, was more than a mere ceremony, and must contain in it some natural obliquity and turpitude. And in this case we need not to go far in our enquiry after it, for it is because of the great uncharitableness, as being a cause of monstrous productions, or leprosies and filthy diseases in the children; and as the former of these two signifies its morality, so this does formally constitute it: and this is confirmed by the words annexed to the prohibition, "For the nations committed all these things, therefore I abhorred them;" amongst which this in the question being enumerated, it will follow more than probably, that since this thing was imputed to the heathens who were not under Moses' law, it must be imputed because it was a violation of the law of nature.

§ 7. To these things I answer, 1) That the punishment of all such approaches under Moses' law with death, was no argument of any natural turpitude and obliquity in the approach. For then circumcision would be necessary by a natural law, because every soul that was not circumcised was also to be cut off from his people. But if for this reason it were only to be concluded unlawful, then since this reason is taken away, and it is by no law of God punishable, nor yet by any law of man, it follows that now it cannot be called a mortal or a great sin, to which no mortal punishment is annexed, nor indeed any at all.

8. 2) But neither was it just thus in the law of Moses. For by the law of Moses it was nothing but a legal impurity, a separation from the temple and public sacrifices and some sorts of commerce for seven days; and thus much was also imposed upon the woman though she was locked up and conversed with no man even for her natural accident and if by the gravity or levity of a punishment we may make conjectures of the greatness of a sin (of which I shall in the

d [Levit. xx. 23.]

:

third book give accounts) then it would follow that every such approach was nothing but a breach of a legal rite or ceremony, since it was punished only with a legal separation, which also was equally upon every innocent woman in that period. Yea, but besides this it was made capital. I answer, that could not be, if the case were the same; for two punishments are not in laws inflicted upon the same offence, directly and primarily and therefore Radulphus Flaviacensise supposes here to be a direct contradiction in the letter of these two laws, and that they are to be reconciled by spiritual significations, in which only they are obligatory to us under the gospel; but I do not very well understand what he would have, nor any ground of his conjecture, but am content it is not material, since he confesses that the very letter obliged the Israelites, which how it is possible, and yet be contradictory, I shall never understand. Hugo Cardinalis says that the first of these punishments was on him who did it ignorantly, but it was capital only to him who did it knowingly and voluntarily. But this is not probable, for then it would be in effect so that the man might only contract a legal impurity, and the woman be sure to die for it:

Enimvero dura lege hic agunt mulieres" :

for although the man could often say truly, and might always pretend that he did it ignorantly, yet the woman could not for it is not likely that she should with much probability at any time say she did it ignorantly, and since it cannot be but by a rare contingency, it is not likely to be the subject matter of a regular law, and provided for by a daily and perpetual provision; especially since that case is already provided for in other periods, as being sufficiently included under them that by chance touch a woman so polluted: and therefore this does not reconcile the difficulty, but since it must be confessed that on the woman (at least ordinarily) both these laws must have effect, and yet the woman cannot easily and ordinarily be supposed to be ignorant in such a case so as to need a law (for laws use not to be made for rare contingencies), it follows that this distinction is not sufficient to reconcile the difficulty. But Lyra and Abulensis have a better, saying that the legal impurity was the punishment only when the fact was private, but it was capital when it was brought before the judge: and truly for this there was great reason. since the woman also was to die, it is not to be supposed that she would accuse her husband and condemn herself, and such things use not to be done publicly; it is therefore to be supposed that whoever did do this so as to be delated for it and convicted must do it ev Xeɩрì vñeρnpavías, 'with the hand of pride,' in contempt and despite of Moses' law, for which as S. Paul witnesses, a man was to

Explan. in Levit. [lib. xiv.] cap. 6. [p. 215. ed. fol. Colon. 1536.]

66

For

[In Levit., cap. xx. tom. i. fol. 120 B.]

[Ecastor, lege dura vivont mulieres,-Plaut. Mercat., iv. 5. 3.]

die without mercyh." But now from hence I 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.

§ 9. 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 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 neighbours' 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 case; 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 S. Austin' in this article are to be expounded, Per talem legem in Levitico positam non naturam damnari, sed concipienda 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.

i

[Heb. x. 28.]

L. Nemo.' De regul. juris. [Digest., lib. 1. tit. 17. 1. 151. col. 1866.]

L. 2. De aqua pluvia arcenda. [Di

gest,, lib. xxxix. tit. 3. col. 1289.]

Super Levit., quæst. Ixiv. [tom. iii. part. 1. col. 519 A.]