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 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 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 of 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 dis

L. D. Adrianus. ff. ad legem Pompeian. de Partic. z Advers. Marcion.

honourable 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 proverb means: and old Ennius translating of Euripides's Hecubab, makes wealth to be nobility:

Hæc tu etsi perverse dices, facile Achivos flexeris.
Num quum opulenti loquuntur pariter atque ignobiles,
Eadem dicta, eademque oratio æqua, non æque valet :

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 δ.

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 the whole inquiry is well summed up in those excellent words of Heliodorus: Εἰμὴν γὰρ ἔδει τὸ τῆς ἀρχῆς ἀποχρήσασθαι νόμῳ, πάντως ἐξήρκει μοι τὸ βούλεσθαι. Βιάζεσθαι γὰρ οἷς ἐξὸν, τὸ πυνθάνεσθαι περιττόν. Εἰ δὲ γάμος τὸ γινόμενον, τὸ παρ ̓ ἀμφοτέρων βούλευμα 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 inquiries 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.

• Apud A. Gell. lib. 11. cap. 4. Oisel. p. 582.
b The original Greek is subjoined:

Τὸ δ ̓ ἀξίωμα, κἂν κακῶς λέγης, τὸ σὸν
Πείσει. λόγος γὰρ ἔκ τ ̓ ἀδοξουντων ἰὼν,
Κἀκ τῶν δοκούντων ἁὐτὸς, οὐ ταυτὸν σθένει.

Hecub. Pors. 297. Leips. ed. pag. 28. (J. R. P.)

• Eurip. in Archelao. 22. Priestley's edition, vol. 7. p. 580.

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: 1. Equity. 2. Judicial interpretation. 3. A contrary, or a ceasing reason. 4. Dispensation. 5. Commutation. 6. Contrary custom. 7. 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.

When the Letter of the Law is burdensome and unjust, the Meaning and Charity of the Law do 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 nimium exacte, videtur esse sycophanta," said Menanderd: "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 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 and domestic governments, if we regard the words more than the mind of him that spake them." There are some tacit exceptions in all the laws that would not be tyrannical. “Quædam etiamsi nulla significatione legis comprehensa sint, natura tamen excipiuntur," saith Quintillian; "Natural reason excepts some things, which are not excepted in the law."And it was accounted a fierce and cruel piece of importune justice in Basilius Macedo the emperor, who, when, a stag having fastened his horn in the prince's belt, and tossed him up with very much danger, one of his guard, with a faulchion, cut the prince's girdle, and rescued him from his sad calamity, -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. Here 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 to.

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 reciditurf?

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 is equity. And to this many rules in the law do minister..

3. "Non debet aliquis considerare verba, sed volun

Horat. Od. iii. 24. 33.

:

tatem, cum non intentio verbis, sed verba intentioni debeant deservire," said the laws. Which is thus to be understood; not that we are blindly to aim at some secret purpose of the lawgiver, for the intention of man is to be judged by his words, and not the words by his intention. But the meaning is, that if some words be obscure, they are to be made intelligible by others. "Incivile enim esse, nisi totâ lege perspecta, una aliqua ejus particula proposita, judicare," says the lawh. We must, in discerning the sense of the law, take in altogether, the antecedents and the consequents; and if darkness be over all the face of the law, then the intention is to be judged by circumstances, by the matter and the occasion, by the story and by use. "Intelligentia dictorum ex causis dicendi assumenda est," said St. Hilary 1; "By the causes of the law, we may judge of the intention of the lawgiver."

4. When the first sense of the words infers any absurdity, contradiction, injustice, or unreasonableness, the mind of the lawgiver is to be supposed to be otherwise, and the words are not to be adhered unto. "In ambigua voce legis, ea potius accipienda est significatio, quæ vitio caret, præsertim cum voluntas legis ex hoc colligi possit." The laws are supposed to be good, and therefore no evil can come from them, and if there does, that was not their mind; for, as Cicero1 said rarely well, "Verba reperta sunt, non quæ impedirent, sed quæ indicarent voluntatem ;" "Words were not invented to obscure, but to declare, the will," and therefore not the words but the will is to prevail; for if we could otherwise certainly and easily understand the prince's will, we should never use words. When Leo Isaurusm was in expectation of the Greek empire, he dealt with two astrologers that were Jews: they promised that the sum of affairs would fall into his hands, and he promised them to grant them any one petition they should ask. When he had obtained his desires, they desired him, that all the images of saints might be demolished: he granted their request, but put them to death who put it in execution. This was against that mind of the