the imperfect drunkard guilty of other perfect crimes, even of whatsoever he then shall act; and they shall, for their own degrees of remaining choice, be imputed to him as certainly as the drunkenness.

20. The same is the case of inconsideration and oblivion, whose effects are innocent upon the same accounts and no other. If they come in upon a negative principle, that is, begin and proceed upon a natural deficiency and an unavoidable cause, that which is forgotten, or that which is done by forgetfulness, must be amended and repaired as well as we can; but, by a preceding morally diligent care, and an after-revocation, nolition, or amends, it may be kept innocent. This only thing is to be interposed, that if, by the precontract of a vicious habit, there is ingenerated in our spirits and exterior faculties such a promptness and facility of sinning, that many of the acts of such a habit are done without advertency, as in vile and habitual swearing, -every such action, though passing without notice, is criminal, because it is the product of the will habitually depraved; and there is no other cause why the actual consent of the will is not at it, but because it was not required, but presumed, and taken without dispute. A young lutenist contends for every single touch of a string; but when he hath made it easy and habitual, he resolves to play a set of lessons, and every stroke is voluntary, though every one is not now actually considered.

Question.

21. To this section of ignorance belongs the question concerning fraud and guile. For if another man cozens and abuses my understanding, he places me in ignorance; and then it is worth our inquiry,-' What morality or what obligation there is in those actions which are done by us so abused, so deceived, so made ignorant, and incapable of judging rightly.'

:

22. The answer relies upon the same grounds as formerly, with this advantage, that he who is deceived by the crafts of another, hath most commonly an ignorance that is very innocent; and then if that ignorance be wholly the cause of any action, the cause is innocent and so is the production. And upon the same accounts we are to judge concerning the obligation of promises and contracts made by persons in

error and deception. 1. If the error be concerning the substance of the thing contracted for, the contract is naturally invalid, and obliges not at all. If Titius buy a horse, and Caius send him a mule or an ox, there is nothing done; Titius hath made no bargain at all. If I buy a man-servant, and the merchant sells me a maiden dressed in man's apparel, this makes the contract invalid; I made no bargain for a maid-servant, but for a man. When Jacob married Rachel, and lay with Leah, that concumbency made no marriage between them; for the substitution of another person was such an injury as made the contract to be none at all; and unless Jacob had afterward consented, Leah had been none of his wife. 2. If the error and ignorance be not in the substance of the contract, whatever else the error be, the contract is naturally valid, that is, without a new contract and renewed consent it can stand; but if that error was the cause of the contract, which, if the error had not been, would not have been at all, then it is in the power of the abused person to rescind the contract, and the fraudulent contractor is, in conscience, bound to recede from all his ill-acquired advantages. The reason is, because he did injury to his neighbour, and placed him in evil dispositions and unaptness to choose wisely, otherwise than God and the laws of nations and the common intention of contractors, do intend: and therefore although there was so much of the substantial requisites as could make a contract naturally valid, yet it was so ill, that all laws and intentions and tacit conditions of contractors have thought fit to relieve the abused person: "Dolo vel metu adhibito, actio quidem nascitur, si subdita stipulatio sit: per doli mali tamen vel metus exceptionem submoveri petitio debet":" and the reason is given *; "Si, dolo adversarii deceptum, venditionem prædii te fecisse Præses provinciæ animadverterit, sciens contrarium esse dolum, bonæ fidei, quæ in hujusmodi contractibus maxime exigitur, rescindi venditionem jubebit:" " In contracts, the honesty of the contractors is principally to be regarded, and fraud is destructive of all honest intentions; and therefore the prætor shall rescind such fraudulent bargains." 3. But if the error was not the entire cause of the contract, but that,

upon other accounts, we would have bargained, only we
would not have paid so great a price, then the bargain is
valid, and the prætor cannot rescind it, nor the injured person
revoke it; but the civil law in this case did permit 'actionein
quanti minoris,' that is, an amends for so much detriment as
I suffer apparently by the fraud. If Caius sells to Mævius
sheep which he affirms to be sound, but they are indeed rot-
ten, the law permits not rescission of the bargain, but forces
Caius to restore so much of the price as the sheep were over-
valued. And this is also the measure in the court of con-
science. But this is to be understood in such cases, where
the fault of the vendible commodity cannot be discerned by
the buyer, and where the seller did deceive voluntarily. For
in other cases 'Caveat emptor' is the rule of the law, Let
the buyer look to it:' and it is also the rule in conscience.
The seller must not affirm the thing to be without fault, if
he knows it vicious and faulty. But neither is he bound to
proclaim the faults of his goods, if they be discernible. And
of this Cicero discourses reasonably: "Num te emere coe-
git, qui ne hortatus quidem est? Ille, quod non placebat,
proscripsit; tu, quod placebat, emisti. Quod si qui proscri-
bunt 'villam bonam beneque ædificatam, non existimantur
fefellisse, etiamsi illa nec bona est, nec ædificata ratione;
multo minus, qui domum non laudarunt.-Ubi enim judi-
cium emtoris est, ibi fraus venditoris quæ potest esse?
Sin autem dictum non omne præstandum est, quod dictum
non est, id præstandum putas? Quid vero est stultius, quam
venditorem ejus rei, quam vendat, vitia narrare? Quid autem
tam absurdum, quam si domini jussu ita præco prædicet,
Domum pestilentem vendo?" " "Who compelled thee to
buy? the man that sold it, did not, it may be, so much as
desire thee. He sold it because it did not please him; and
because it did please thee, thou hast bought it. He that
sets up a bill of sale, and proclaims a house fair, and well-
built and well-seated, hath not deceived thee, though it be
neither well-built, nor well-seated; because if it be entire
for thee to make a judgment, he hath not deceived thee.
Much less if he hath not praised it. For if all that is spoken
in the bill, is not of necessity (viz. in order to the bargain

Lib. 13. ff. de Actionibus Empt. in Princ.
• Lib. 3. Offic. cap. 13. 6. Heusingor, pag. 663.

or thy choice) to be verified, much less must that be performed or required which was not spoken. But does ever any man cry, 'Stinking fish to be sold, or say, 'Come and buy a house that hath the plague in it?" "-All this is great reason; only this is to be added, that such faults as cannot be discerned by the buyer, must be declared, or must be allowed for in the price and the case is the same, if the buyer be a child, or a fool, or an ignorant undiscerning person; for no man must be made richer by the injury and folly of his brother. I know that in all the public contracts of mankind, that which all men d consent in is, to buy cheap and to sell dear: but Christian religion, and the contempt of the world, and the love of spiritual interests, are sent from heaven, to cause merchandise to be an instance of society, and not a craft and robbery. 4. If the buyer be deceived, but not by the seller, but by a third person, and that deception be the cause of the contract, the buyer may rescind the contract, if he can; that is, he is not in conscience obliged to stand to it, if he can be quit in law: but he that deceived him, is bound to repair his injury if he have suffered any,-or to break the bargain, if the goods be unaltered. These things have no particular reason, but are evident upon the former accounts.

Sect. 3. Of Fear and Violence, and how these can make
an Action involuntary.

RULE VII.

Fear that makes our Reason useless, and suffers us not to consider, leaves the Actions it produces, free from Crime, even though itself be culpable.

1. THE case is this; Roberto Mangone, a poor Neapolitan, travelling upon the mountains to his own house, is seized on by the banditti, a pistol is put to his breast, and he threatened to be killed, unless he will be their guide to the house of Signor Seguiri his landlord, whom, he knows, they intend to rob and murder, The poor Mangone did so: his lord was murdered, his goods rifled, and his house burned. The question is, whether Mangone be guilty of his lord's death.

2. To this the answer is easy, that Mangone is not innocent; and though he did not consent clearly and delightingly to Seguiri's death, yet rather than die himself he was willing the other should. No man is desirous, in a storm, to throw his goods into the sea, if he could help it, and save his life; but rather than lose his goods and his life too, he heaves them overboard. Μικταὶ μὲν οὖν εἰσιν αἱ τοιαῦταὶ πράξεις· ἐοίκασι καὶ μᾶλλον ἐξουσίοις, said Aristotle f; "These kinds of actions are mixed, but they have more of spontaneity" and election in them than of constraint. No Christian remaining a Christian is willing to offer sacrifice to demons, or to abjure Christ, if he be let alone: but he that in time of persecution falls away, not changing his heart, but denying his profession, this man is not excused by his fear, but betrayed by it. "Ἔνια δ ̓ ἴσως οὐκ ἔστιν ̓ ἀναγκασθῆναι, ἀλλα μᾶλλον ἀποθνητέον, παθόντα τὰ δεινότατα, “There are some things to which a man must not suffer himself to be compelled by any force, but he must rather die than do them." And because there are some things ἃ καὶ τὴν ἀνθρωπίνην φύσιν ὑπερτείνει, “which are insufferable to human nature," and therefore there is, in laws, assigned a certain allowance of fear, " qui potest cadere in fortem et constantem virum," that is, in the case of danger of suffering the extremest evils, and our obedience to human laws is excused in such cases, because no man is ordinarily bound by the laws to suffer a greater evil in keeping the law, than is threatened by the law itself to him that breaks them: therefore the law allows an omission of obedience in the fear of the greatest evils ;as I have already explicated. But in divine laws it is otherwise, because no man can threaten or inflict on another an evil comparably so great as God does on them that break his laws; and therefore the less fear cannot be a reasonable excuse against a greater; and in all cases, the fear of man must yield to the fear of God. And therefore in the matter of a divine commandment, no fear of temporal evil is an ex