IX. There are ancient ordinances, laws which on all sides are allowed to be just and good, yea divine and apostolic constitutions, which the church it may be doth not always keep, nor always justly deserve blame in that respect. For in evils that cannot be removed without the manifest danger of greater to succeed in their rooms, wisdom, of necessity, must give place to necessity. All it can do in those cases is to devise how that which must be endured may be mitigated, and the inconveniences thereof countervailed as near as may be; that when the best things are not possible, the best may be made of those that are.
Nature than which there is nothing more constant, nothing more uniform in all her ways, doth notwithstanding stay her hand, yea, and change her course, when that which God by creation did command, he doth at any time by necessity countermand. It hath therefore pleased himself sometime to unloose the very tongues even of dumb creatures, and to teach them to plead this in their own defence1, lest the cruelty of man should persist to afflict them for not keeping their wonted course, when some invincible impediment hath hindered.
If we leave Nature and look into Art, the workman hath in his heart a purpose, he carrieth in mind the whole form which his work should have, there wanteth not in him skill and desire to bring his labour to the best effect, only the matter which he hath to work on is unframable. This necessity excuseth him, so that nothing is derogated from his credit, although much of his work’s perfection be found wanting.
Touching actions of common life, there is not any defence more favourably heard than theirs, who allege sincerely for themselves, that they did as necessity constrained them. For when the mind is rightly ordered and affected as it should be, in case some external impediment crossing well advised desires shall potently draw men to leave what they principally wish, and to take a course which they would not if their choice were free; what necessity forceth men unto2, the same in this case it maintaineth, as long as nothing is committed simply in itself evil, nothing absolutely sinful or wicked, nothing repugnant to that immutable law, whereby whatsoever is condemned as evil can never any way be made good. The casting away of things profitable for the sustenance of man’s life, is an unthankful abuse of the fruits of God’s good providence towards mankind. Which consideration for all that3 did not hinder St. Paul from throwing corn into the sea, when care of saving men’s lives made it necessary to lose that which else had been better saved. Neither was this to do evil, to the end that good might come of it: for of two such evils being not both evitable, the choice of the less is not evil. And evils must be in our construction judged inevitable, if there be no apparent ordinary way to avoid them; because where counsel and advice bear rule, of God’s extraordinary power without extraordinary warrant we cannot presume.
In civil affairs to declare what sway necessity hath ever been accustomed to bear, were labour infinite. The laws of all states and kingdoms in the world have scarcely of any thing more common use. Should then only the Church shew itself inhuman and stern, absolutely urging a rigorous observation of spiritual ordinances, without relaxation or exception what necessity soever happen? We know the contrary practice to have been commended by him4, upon the warrant of whose judgment the Church, most of all delighted with merciful and moderate courses, doth the oftener condescend unto like equity, permitting in cases of necessity that which otherwise it disalloweth and forbiddeth.
Cases of necessity being sometime but urgent, sometime extreme5, the consideration of public utility is with very good advice judged at the least equivalent with the easier kind of necessity.
Now that which causeth numbers to storm against some necessary tolerations, which they should rather let pass with silence, considering that in polity as well ecclesiastical as civil, there are and will be always evils which no art of man can cure, breaches and leaks moe than man’s wit hath hands to stop; that which maketh odious unto them many things wherein notwithstanding the truth is that very just regard hath been had of the public good; that which in a great part of the weightiest causes belonging to this present controversy hath ensnared the judgments both of sundry good and of some well learned men, is the manifest truth of certain general principles, whereupon the ordinances that serve for usual practice in the Church of God are grounded. Which principles men knowing to be most sound, and that the ordinary practice accordingly framed is good, whatsoever is over and besides that ordinary, the same they judge repugnant to those true principles. The cause of which error is ignorance what restraints and limitations all such principles have, in regard of so manifold varieties6 as the matter whereunto they are appliable doth commonly afford. These varieties are not known but by much experience, from whence to draw the true bounds of all principles, to discern how far forth they take effect, to see where and why they fail, to apprehend by what degrees and means they lead to the practice of things in show though not in deed repugnant and contrary one to another, requireth more sharpness of wit, more intricate circuitions of discourse, more industry and depth of judgment, than common ability doth yield. So that general rules, till their limits be fully known (especially in matter of public and ecclesiastical affairs), are, by reason of the manifold secret exceptions which lie hidden in them, no other to the eye of man’s understanding than cloudy mists cast before the eye of common sense. They that walk in darkness know not whither they go. And even as little is their certainty, whose opinions generalities only do guide. With gross and popular capacities nothing doth more prevail than unlimited generalities7, because of their plainness at the first sight: nothing less with men of exact judgment, because such rules are not safe to be trusted over far. General laws are like general rules of physic, according whereunto as no wise man will desire himself to be cured, if there be joined with his disease some special accident, in regard whereof that whereby others in the same infirmity but without the like accident recover health, would be to him either hurtful, or at the least unprofitable; so we must not, under a colourable commendation of holy ordinances in the Church, and of reasonable causes whereupon they have been grounded for the common good, imagine that all men’s cases ought to have one measure.
Not without singular wisdom therefore it hath been provided, that as the ordinary course of common affairs is disposed of by general laws, so likewise men’s rarer incident necessities and utilities should be with special equity considered. From hence it is, that so many privileges, immunities, exceptions, and dispensations, have been always with great equity and reason granted; not to turn the edge of justice, or to make void at certain times and in certain men, through mere voluntary grace or benevolence, that which continually and universally should be of force, (as some understand it,) but in very truth to practise general laws according to their right meaning.
We see in contracts and other dealings which daily pass between man and man, that, to the utter undoing of some, many things by strictness of law may be done, which equity and honest meaning forbiddeth. Not that the law is unjust, but unperfect; nor equity against, but above, the law, binding men’s consciences in things which law cannot reach unto. Will any man say, that the virtue of private equity is opposite and repugnant to that law the silence whereof it supplieth in all such private dealing? No more is public equity against the law of public affairs, albeit the one permit unto some in special considerations, that which the other agreeably with general rules of justice doth in general sort forbid. For sith all good laws are the voices of right reason, which is the instrument wherewith God will have the world guided; and impossible it is that right should withstand right: it must follow that principles and rules of justice, be they never so generally uttered, do no less effectually intend, than if they did plainly express, an exception of all particulars, wherein their literal practice might any way prejudice equity.
And because it is natural unto all men to wish their own extraordinary benefit, when they think they have reasonable inducements so to do; and no man can be presumed a competent judge what equity doth require in his own case: the likeliest mean whereby the wit of man can provide, that he which useth the benefit of any special benignity above the common course of others may enjoy it with good conscience, and not against the true purpose of laws which in outward show are contrary, must needs be to arm with authority some fit both for quality and place, to administer that which in every such particular shall appear agreeable with equity. Wherein, as it cannot be denied but that sometimes the practice of such jurisdiction may swerve through error even in the very best, and for other respects where less integrity is: so the watchfullest observers of inconveniences that way growing, and the readiest to urge them in disgrace of authorized proceedings, do very well know, that the disposition of these things resteth not now in the hands of Popes, who live in no worldly awe or subjection, but is committed to them whom law may at all times bridle, and superior power control; yea to them also in such sort, that law itself hath set down to what persons, in what causes, with what circumstances, almost every faculty or favour shall be granted, leaving in a manner nothing unto them, more than only to deliver what is already given by law. Which maketh it by many degrees less reasonable, that under pretence of inconveniences so easily stopped, if any did grow, and so well prevented that none may, men should be altogether barred of the liberty that law with equity and reason granteth.
These things therefore considered, we lastly require that it may not seem hard, if in cases of necessity, or for common utility’s sake, certain profitable ordinances sometime be released, rather than all men always strictly bound to the general rigour thereof.
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Footnotes
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Numb. xxii. 28. ↩
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“Necessitas, quicquid coegit, defendit.” Senec. Controv. [lib. iv. controv. 27. p. 186, ed. Paris. 1626.] ↩
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Acts xxvii. 38. ↩
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Luke vi. 4. ↩
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“Causa necessitatis et utilitatis æquiparantur in jure.” Abb. Panor. [Abbas Panormitanus, Nicolaus de Tudeschis, Archbp. of Palermo, 1427-†1453. (von Schulte, Gesch. der Quellen des Kanonischen Rechts, 1877. ii. 312.) 1886.] ad c. ut super nu. 15. de Reb. Eccles. non alien. [Comment. in Decretal. t. iii. 76. Lugd. 1586.] ↩
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Ἐν τοι̑ς περὶ τὰς πράξεις λόγοις, οἱ μὲν καθόλου κενώτεροί εἰσιν, οἱ δ’ ἐπὶ μέρους ἀληθινώτεροι· περὶ γὰρ τὰ καθ’ ἕκαστα αἱ πράξεις. Arist. Eth. lib. ii. c. 7. ↩
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[So Arist. Rhet. ii. 21. 9, οἱ γὰρ ἀγροι̑κοι μάλιστα γυωμοτύποι εἰσὶ, καὶ ῥᾳδίως ἀποϕαίνονται.] ↩