makes the crime more popular and imitable by the greatness of the evil example; but he is more to be eased, when the punishment will, by reason of his greatness of honour, be too unequal a diminution to him, and cause a contempt greater than the intention of the law.

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5. The commutation of the punishment, imposed by law, must, at no hand, be done at a set price beforehand, or taxed in penitentiary tables, and be a matter of course, or indifferent dispensation: for when men know the worst of the evil, which they fear, to be very tolerable and easy, it is an invitation, and does tempt to the sin. But therefore this must be done by particular dispensation; not easily, not to all, not to many, not at all for the price, but to relieve the needs of him, who is in danger of being swallowed by too great a sorrow.

6. Commutations are not to be imposed, but when the dispensation is something of ease in a law of burden; for then to change it into a less burden is a dispensation, by a commutation of which it is properly capable. Thus when abstinence from flesh, enjoined by a law, it may be, upon good ground, is dispensed withal and changed into an abstinence from wine or strong drink, or society, or into alms. But when laws are made, which contain in them no burden, but are in order to some end of personal or public advantage, some end of virtue, or caution, or defence, then either the dispensation (when it is reasonable to be required) must be without commutation; or if it be not, the commutation must be made into something, that shall contribute to the end intended in the law. Thus if any one hath reason to desire to be dispensed with in the publication or trine denunciation of an intended marriage, it is not reasonable, nor according to the intention and wisdom of the law, to change that law into a tax of money, though for alms and religion; but it may be done by commanding them to abstain from mutual congress, till the secret marriage can prudently be made public; because this commutation does in some degree secure the end of the law, and makes some amends for want of publication of the banns. If a deacon have reason to desire to receive the order of priesthood from one that is not his own diocesan, the bishop that dispenses with him, cannot prudently or justly require of him to give a sum of money

for the reparation of a church, because that, though it be a good work, yet it is not in the same matter, nor does it cooperate towards the wise end of the law: but he does well, if he enjoins him to procure and carry along with him greater testimonials of his conversation and worthiness, and that he publish his intention to all his own neighbourhood, that they may, if they see cause, object against him; and he may not be promoted by a clancular ordination.

7. I might add here, that, in commutations, the pretences of charity and alms and religion must not be the cover of avaricious practices and designs; but that this, although it be useful in respect of the corrupted manners of men, yet it is nothing to the explication of this rule.

Sect. 6. Contrary Customs.

RULE VI.

A Custom can interpret a Law, but can never abrogate it without the Consent of the supreme Power.

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1. THE doctrine of customs, both in divine laws and in human, I have already explicated, so far as concerns their positive power, and the power of binding the conscience to obedience and complying. That which now is to be inquired, is, concerning their power to disoblige and set at liberty: and even this also may very well be estimated by those positive measures, and hath in it not very much of special consideration, save this only, that there is very great reason of dissenting from the commonly-received doctrine of the power of customs in this very particular.

2. For although by the consent of all the world custom can introduce a law, according to that saying of Tertullian, "Consuetudo in rebus civilibus pro lege suscipitur, cum deficit lex," "When there is no law, it is supplied by custom;" and this is so far to be extended, that, if the custom be reasonable, and antecedent to a law, it shall remain after the making of a law in that very matter, "nisi expresse caveatur in ipsa," "unless the law does expressly cancel it by particular caution ";"-yet when a law is established and is good, the force of custom is not sufficient, of itself, to annul it, and to cancel the obligation of conscience.

3. A custom can interpret a law. "Si de interpretatione legis quæratur, imprimis inspiciendum est, quo jure civitas retro hujusmodi casibus uteretur," says the lawh. For it is to be supposed that the law was obeyed, and in that sense in which the lawgiver intended it, and that the people do their duty in things of public concern, is a just and a legal presumption: and therefore nothing is more reasonable in questions concerning the interpretation of a law, than to inquire how the practice of people was in times by-gone: because what they did when the reason and sense of the law were best perceived, and what the lawgiver allowed them to do in the obedience of it, may best be supposed to be that which he intended. Upon this account, the judged cases in law are the best indication of the meaning of the law; because the sentence of the judges does most solemnly convey the notice of a custom, and allow it reasonable, and by those customs does interpret the law, so that they give aid each to other; the custom gives assistance to the judges in understanding the meaning of the law, and the judges, giving sentence according to the custom, declare that custom to be reasonable; according to that in the Spanish laws, "That custom is for ever hereafter to be observed, 'si secundum eam bis judicatum fuerit,' 'if there have been two sentences pronounced according to the custom." But this use of custom is expressed both in the civil and canon law. "Inambiguitatibus, quæ ex legibus proficiscuntur, consuetudinem aut rerum perpetuo similiter judicatarum auctoritatem vim legis obtinere debere:" "custom and precedents of law are as good as law, in all questions of law and of doubtful interpretation." And therefore the presidents of provinces were commanded to judge by the measure of custom: "Probatis iis, quæ in oppido frequenter in eodem controversiarum genere servata sunt, causa cognita statuat;" "See what is the custom of the place, and, by the measures of that, let the decree pass." And so it is in the canon law", where a a certain bishop is commanded to inquire what is the custom of the metropolitan church, and the churches in the neighbourhood, "et diligentius imitari," "to follow it diligently," meaning, both in practice and in sentences. Now in this, if the conscience can be relieved and the rigour of the law abated by the aids of custom, it is safe to use it, and to proceed according to the rules of equity, described in the beginning of this chapter.

4. But all this is therefore reasonable because it is 'consuetudo secundum legem,' 'it is according to law;' all the ease and abatements of which that are reasonable, the conscience may safely use. But if a custom be against a law, the law, and not the custom, ought to prevail; for a custom cannot take off from us the duty and obedience we owe to the just laws of our superiors. "Consuetudo nec rationem vincit nec legem"." As, in divine laws, reason and truth can never be prejudiced by contrary customs; so, in human laws, the authority and obligation cannot be annulled by desuetude alone. For although a man may get impunity and save his skin whole under the protection of contrary custom; yet our inquiry is for the indemnity of conscience: and as to this, it is considerable, that, when a custom contrary to law does enter, it enters by neglect or disobedience, by rebellion or contempt, it proceeds all the way in the paths of iniquity; for still men go 'qua itur, non qua eundum est,' they go, like frighted or wandering sheep, there where the gap is open, not where the way lies: and it will be impossible that such customs should be a warranty to the conscience, and that it should be lawful to break a law, because the law is broken; that disobedience should warrant rebellion; and that it be innocent to follow the multitude to sin. So that, so long as the custom is alone and walks by itself, it walks amiss: but if, by any means, this custom pass into lawful, as a traveller that goes so far westward and still goes on, till at last he comes to the rising of the sun, then it is not by any force of the custom, but by first obtaining pardon and then procuring leave.

5. For it is observable, that, in law, customs themselves are esteemed illegal and reprobate if they be against law.

Lib. 2. cap. Quæ sit long. Consuet.

• Non posse præscribi contra obedientiam. cap. Cum non liceat de Præscript.

"Licet usus consuetudinis non minima sit auctoritas, nunquam tamen veritati aut legi præjudicat;" "Use and cus tom have great authority, but nothing against truth or law P:" and "non valet consuetudo contra canonicam institutionem;" for the custom is unreasonable, if it be against law: for "illam dico rationabilem, quam non improbant jura," saith the gloss; and the Lateran council defines those customs to be reasonable, "quæ ratione juvantur et sacris congruunt institutis," "which are assisted by reason and are agreeable to the holy canons." Now because a custom is by no law admitted, unless it be reasonable, and that by all laws those customs are judged unreasonable, which are against law; -we have reason to withdraw ourselves from the practice of such customs, though they be ever so general and long, unless they be, by some other means, allowed.

6. And therefore there is wholly a mistake in this doctrine, upon the account of an ἐναντιοφάνεια and some 'antinomies' in law: for it is certain, that, in the civil law, and in the laws of many nations anciently, the custom of the people was esteemed sufficient to abrogate a law; but it began first, and continued long only in those commonwealths, where the people had power to make a law, or had some pretensions and colours of that power, which were not wholly to be taken from them: and therefore "rectissimes receptum est, ut leges non solum suffragio legislatoris, sed etiam tacito consensu omnium per desuetudinem abrogentur;" "laws are abrogated not only by the express revocation of the lawgiver, but by the secret consent of all." And the reason of this is well expressed by Julianus 'the lawyer: "Quid interest : an suffragio populus voluntatem suam declaret, an rebus ipsis et factis?" "It is all one how the people signify their will, by suffrages or by actions:" meaning, that so long as the legislative power was in them, they had power to revoke their own law by custom as well as by voice, at long running as well as at one convention. But when the people are not their own subjects and their own princes (for so they are in all popular governments), but that the prince or the senate hath the legislative power, they cannot introduce a custom