quandam legem mihi dixi, ut defunctorum voluntates, etiam si jure deficerentur, quasi perfectas tuerer. Constat autem codicillos istos Aciliani manu scriptos. Licet ergo non sint confirmati testamento, à me tamen, ut confirmati, observabuntur: Every one that knows any thing, knows, that, in law, unsolemn testaments are invalid: but I have another law of my own;-if I know it was really the will of the dead, I will verify it though it want the solemnity of law:"and this also was affirmed by Innocentius, saying, "Electionem quæ juri naturæ consentit, licet non serventur, juris solennitates tenere." f

And there is great reason and great piety in this sense of the question; for when a duty is anyways concerned, there is something owing to God, which no human power can or ought to prejudice. For it is in testaments, where any duty of any one is engaged, as it is in contracts of marriage, to which every one that can choose, is capable of being naturally obliged now the relative of the obligation cannot in human courts claim either the advantage of an unsolemn testament, or unsolemn and clandestine contract, yet the relative who is obliged to duty, cannot be so quitted: and, therefore, the father can oblige a son in duty to perform an unsolemn testament; and every contracted person is bound to perform privately, what the other cannot challenge publicly and this is not obscurely intimated by the law: "Ex imperfecto autem testamento voluntatem tenere defuncti non volumus, nisi inter solos liberos à parentibus utriusque sexus;" viz. “ nisi liberi in sola dividenda hæreditate voluntatem habeant patris."h

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And, for the confirmation of all this, it is remarkable, that they who affirm an unsolemn testament to be utterly invalid, and that the law of nature is no remedy in this case, —yet affirm that it is of force in the matter of piety; as in donations to churches, the poor, and pious uses, as appears in Imola, Ananus, Antonius Rubeus, Covarruvias, and others which concession of theirs could not be reasonable or consistent with their opinion, but that it is made so by the foregoing considerations; which certainly are the best medium to reconcile duty and prudence, the laws natural and

f Cap. Quod. sicut: de election. h Gloss.

L. hac consultissima C. de testam.

civil, the right of a man with the government of a commonwealth, and to state the question between the two parties who earnestly dispute it to contrary purposes.

For although the question is probably disputed on both sides, yet there are on either hand instances, in which the solemnity of the law does, and does not, oblige respectively: which shews, that the probability is, on either hand, right and true; and the thing, as it lies in the middle, hath nothing certain or resolved; but is true or false, as it partakes of differing reasons. Now the reason of the whole is; because the solemnity of law is wholly to be regarded, where there is not a bigger obligation; where God hath not bound, and man hath bound, man is to be obeyed: but where God hath bound directly, there God is to be obeyed, whatever be pretended by men: but if God hath only bound indirectly and collaterally, as if it be a case favourable and pious, there the solemnity of law, which is against it, is not to prevail; but yet is to prevail in the behalf and prosecution of it.

Thus if a pupil makes a contract in his minority to his ruin, or signal detriment, he is to be relieved by the advantage of the civil law, which makes his contract invalid, because the person is declared incompetent; and he may lawfully take his remedy; and is not bound by the law of nature to verify it: because he being less naturally capable to contract, the other is, by the law of nature, bound not to do him injury, and take unequal advantages when every man hath equal right: and therefore, if he does prevaricate the natural law of justice, which is equality, he also may lose the privilege which the other's action passed unto him; for the civil law declaring that minors shall not be prejudiced, makes up that justice or equality which nature intends. For the minor, with his less portion of understanding, and the defensative and retreat given him by the civil law, is made equal to the contractor who is perfect in his natural capacity. Equality must be done and had. And this is one way of inferring it.

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Another way is if the minor receives advantage by the bargain, then there is equality; for the want of his natural capacity is supplied by the advantageous matter; and therefore such contracts are valid, though the one of the contractors be legally incapable. But,

3. If the bargain gave some advantage on either side, the minor must not take the advantage offered him by the civil law to himself, unless he allow to the other his share of advantage in the bargain: for otherwise there is inequality. But,

4. Neither one nor the other is to be done, nor the contract to be rescinded, if the person was naturally capable,— that is, unless it be apparent by the consciousness of his own weakness, or the iniquity and folly of the contract, that he was less in nature than the other; and therefore, in this case, the civil law, rescinding the contract of the minor, does declare that he is incapable naturally as well as civilly: and the civil constitution does no way interfere with the natural, but ministers to it; making the natural instance even with the natural reason: for this being always alike, from the first to the last, the instance growing from imperfection to perfection, must in the progression be defended and supplied and be fitted to the other.

But in general, the rule is true, which Panormitan affirms in prosecution of what I have now disputed: "Quando jus civile aliquid disponit contra jus naturæ, standum est juri naturæ:" and in particular to this very instance of unsolemn testaments, Pope Alexander III. being asked, whether, according to the custom that was in the diocese of Ostia, a will could be valid, which was not attested by seven or five witnesses at least, gave in answer, "Tales leges à divina lege et sanctorum patrum institutis et à generali ecclesiæ consuetudine esse alienas; et ideo standum esse contra illas jure naturali, secundum quod ' in ore duorum aut trium stat omne verbum."" Which words of his I only admit so far as they are agreeable to the former measures and limitation. For that a word is true, under the test of two or three witnesses, is not a prohibitive law or command of nature; but it was urged by our blessed Saviour to the Jews as a thing admitted to their law, and it is agreeable to the law of nature; but yet not so, but that a greater caution may be, in some cases, introduced by the civil constitution, as I affirmed above:* viz. when the innocent and equal state of nature, to which such simplicity or small duplicate of testimonies were

i Cap. Cum esses de testa.

k Rule x. n. 51.

men,

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sufficient, becomes changed by frauds and artifices of evil -or new necessities are introduced, which nature did not foresee, and therefore did not provide for, but God hath provided for them by other means, even by a power given to the civil magistrate.

Lastly, to make up the measures and cautions of this discourse complete, it is to be added, that when the civil laws annul an unsolemn contract or testament, it is meant, that such are to be declared null, when they come into judgment; not that the action, or translation of any dominion, inheritance, or legacy, is ipso facto' void: and, therefore, he that is possessed of any such, is not tied to make voluntary restitution, or to reveal the nullity of the donation, but to depart from it, when he is required by law: for he hath the advantage of a natural right or power in the donor, and that, being first, must stand till it be rescinded by a competent power; for the whole question being but probable on either side, the possessor, or the donee, hath the advantage till a stronger than he comes and takes away that in which he trusted.

RULE VI.

Sins against the Laws of Nature are greater or less, not by that Proportion, but by the greatness of the Matter, and the Evil consequent, or the Malice of the Sinner.

THIS rule is intended to remedy a greater error, that is in the world and prevails very much to the abuse of men's persuasions in many cases of conscience;-viz. that all sins, which are unnatural, are the worst: and to be a sin against nature is the highest aggravation of it in the world: which if it were true in 'thesi,' yet, because when it comes to be reduced to practice, it is wrapped up in uncertain notices, it ought to be more warily handled. For when men have first laid huge loads of declamations upon all natural rights and natural wrongs, and then endeavour to draw forth a collective body of natural laws, and they have done it by chance or as they please,-they have put it within their own powers to make what things they list as execrable as

murder or blasphemy, without any other reason but that they have called them unnatural sins.

Concerning which these things are considerable:

1. All sins against nature are no more the most detestable than all sins against God: because if the kind of sins, or the general reason or object of its irregularity, were all that were considerable in this, nothing could be the aggravation of a sin more than this,-that it were against God. Now, because all sins are against God, and yet amongst them there is difference, the greatness of this appellative is not the only thing that is considerable. But this is, that as all sins are against God, so all are against nature, some way or other: and the reason that concludes against every sin, is that reason that is common to all wise men; and therefore it must be also natural: I do not mean, taught us without the help of revelation or institution, but such as all men, when they are taught, find to be really, and in the nature of things so constituted, to be reasonable.

All voluntary pollutions are sins against nature; because they are satisfactions of lust in ways otherwise than nature intended but they are not, all of them, worse than adultery or fornication. For although all such pollutions are besides nature's provisions and order, yet some of them are more single evils than fornication; which although it be against nature too, because it dishonours the body, yet it is by name forbidden in the commandment, which some of the others are not, but come in by consequence and attendance: and fornication includes the crime of two, which the other does not always; and it is acted with more vile circumstances and follies, and loss of time, and other foul appendages. It is said to be against nature to approach a woman during her natural separations. But if it be a sin (which I shall consider in its due place), yet it is of the smallest consequence and malignity; so that for a sin to be against nature, does only denote its material part, or the body of it; but does not always superinfuse a venom and special malignity, or greatness of crime, into it, above other sins. But it is according as the instance is. Every sin against the duty we owe to our parents, is unnatural: but they have their heightenings and diminutions from other accounts, and in this they have variety. And it is observable, that there were some laws