Upon which consideration standeth the equity of the Judicial Law given to the Jews, Exod. xxi. 33, 34, which ordereth, that in case a man dig a pit or well for the use of his family, and, looking no further than his own conveniency, put no cover on it, but leave it open, whereby it happeneth his neighbour's beast to fall therein and perish, the owner of the pit is to make it good, inasmuch as he was the occasioner of that loss unto his neighbour, which he might and ought to have prevented.* In this last case the thing is not, for the danger of the Scandal, to be left undone, supposing it, as we now do, otherwise behoveful to be done; but the action is to be ordered and carried on by us, for the manner of doing, and in all respects and circumstances thereunto belonging, with so much chariness,† tenderness, and moderation, and wisdom, that so many as are willing to take notice of it may be satisfied that there was on our part a reason of just necessity that the thing should be done; and that such persons as would be willing to make use of our example, without the like necessity, may do it upon their own score, and not be able to vouch our practice for their excuse: even as the Jew that stood in need to sink a pit for the service of his house and grounds, was not, for fear his neighbour's beasts should fall into it and be drowned, bound by the Law to forbear the making of it, but only to provide a sufficient cover for it, when he had made it. Here the Rule is, Order the doing of that which may not well be left undone, in such sort, that no Scandal may, through your default, be taken thereat. 6. I do not readily remember any doubt that can occur about the reason of Scandal, which may not be brought within the compass of these four Rules; and then the right applying some or other of these Rules will give some furtherance towards the Resolution of these Doubts. *ought to have prevented.' In the Case of the Liturgy these words are followed immediately by the Rule. The rest of the matter here given does not appear on p. 53. tchariness. In previous Editions, 'clearness.' See above, page 53, note †. THE CASE OF UNLAWFUL LOVE. Two Gentlemen who were very good friends, and both of them married, used to converse together familiarly. One of these took a special liking in the company and conversation of the other's wife, and she answerably in his; which afterwards proceeded to some degree of love; which, though ever restrained, and preserved without any violation of chastity, grew yet in the end to this issue, that they mutually vowed either to other, that if happily* either of them should at any time be freed from the bond of Matrimony, either he by the death of his wife, or she by the death of her husband, that party so freed should continue afterwards unmarried, and stay for the other, till the other should be freed also, though it were during life. Now so it is, that the Gentlewoman's husband died, and her affections and resolution so altered that gladly she would marry, if she might be released of the engagement of that Vow, or persuaded of the unlawfulness or nullity thereof. Concerning the present Case, as it is propounded, sundry Points are needful to be resolved, that so we give a right judgment de praeterito, of what is already done for the time past, in respect of the Gentlewoman's former Promise, and sound direction also de futuro, what is further to be done for the time to come, in respect of her present distresses. Point I. 1. First of all, It is considerable, whether the Promise made by the Gentlewoman and her friend, were properly a Vow or no? So it is called in the proposal of the present Case, and *happily,' here equivalent to haply.' The Cambridge Version has 'forte.' that agreeable to the common use of speech with us here in England, who extend the word, Vow, very far; neither shall I make scruple in the ensuing Discourse, sometimes to call it so; for Loquendum ut Vulgus. But, to speak properly, a Vow is a word of a narrower extent than a Promise, every Vow being indeed a Promise, but not every Promise necessarily a Vow. Promises may be made indifferently, either to God, or men; but Promises made to men are no Vows: wherefore it is usually inserted into the definition of a Vow, as a condition essentially requisite thereunto,b that it be made unto God alone, insomuch as to make a Vow to any creature is, interpretative, to exalt the creature into the place of God, and so to make it an idol;* which is clear, not only from the express Ps. lxxvi. Precept of God, and the constant examples of godly men, and N the usual phrases of the Holy Ghost in the Scriptures, but also 2. from the universal consent of all learned men, both Divines Judg. xi. and others, and even of Heathens also. This Gentlewoman's I Sam.i.11. Judg. xi. Promise then being made to the Gentleman her friend alone, 36. as was his also to her, and neither of both to God, is therefore Ps. lvi. 12. to be taken for a mere Promise, but no Vow. Num. xxi. 30. 2. If, for more confirmation thereof, she bound herself also by Oath, as it is not unlike, yet it is no more for all that but a mere Promise still, and not a Vow. For albeit the very using of an Oath be a calling in of God into a business, and the person that taketh an Oath doth thereby set himself in the presence of God, yet an Oath calleth Him in only to be a witness, d without any intent to make Him a party to the business, whereas in a Vow He is made a party, and not only a witness; whereunto agree those forms so frequent in Holy Scripture, in Oaths both assertory, and stipulatory: The Lord Gen. xxxi. be witness between us: God is my witness: I take God to Judges xi. a Votum soli Deo fit, sed Promissio etiam potest fieri homini. Aquinas, Sec. Sec. Quaest. lxxxviii. Art. 5. ad Tert. b Promissio Deo facta est essentia Voti. [Votorum quoddam pertinet ad Religionem ratione solius Promissionis Deo factae, quae est essentia Voti.] Ibid. [ad Primum.] * Compare De Juramenti Obligatione, Praelect, v. §. 2. Sponsio, qua obligamur Deo. d Jurare nihil est aliud quam 29. 104. 50. 10. I Thess. ii. 5. Mal. ii. 14. record, and the like. For even as when a Promise is made Rom. i. 9: unto God, whereunto, for the more solemnity, the presence of some men is required as witnesses, such a Promise is to be held 2 Cor. i. 23. Phil. i. 8. for a Vow, because it is made to God alone, although in the presence of men; so, on the other side, when a Promise is made unto some man, whereunto, for the more assurance, the presence of God is required as a witness, such a Promise is not to be held for a Vow, because it is made unto man alone, although in the presence of God. 3. Nay further, if the Gentlewoman when she thus engaged herself did use these very words, 'I vow to God,' or words to that effect, as we know is often done in solemn Promises between man and man, yet neither is that sufficient to make it properly a Vow; for to judge rightly when question is made concerning any particular Promise, whether it be a Vow, yea or no, we are not to be guided so much by the forms of speech, which are subject to change, impropriety, and many defects, as by the true intention and purpose of the parties, especially the Promiser. Now what was the whole intent and purpose of these parties, when they mutually bound themselves in such sort as in the Case propounded is laid down, no reasonable man can be ignorant; even this and no other, to give as good assurance as they could devise, either to other, and to receive the like assurance again, that the thing by them agreed on and promised should be faithfully performed; and if either Oaths or Protestations were also used by way of confirmation, they are all in common intendment to be taken as tending to the selfsame purpose, without looking at any further thing; and clearly where the Promiser hath no intention to bind himself to God, but to man only, the Promise so made is no Vow, whatsoever formality of words may be used in the making of it. 4. Neither is the examination of this Point a curiosity either in itself fruitless, or impertinent to the Case in hand; for albeit in that which seemeth to be the very main Point of all, viz. the power of binding the Conscience, there be no material difference between a Vow and an ordinary Promise; a lawful Promise no less binding unto performance than a lawful Vow, and an unlawful Vow no more binding than an unlawful Promise; yet there is some difference between them, and that of some importance too, in respect of the relaxation of that bond. For since it belongeth to him to whom a bond is made to grant a release thereof, it belongeth therefore to God alone to release the obligation of a Vow; and no man hath power so to do, because the Vower, by his Vow, bindeth himself to God, not to man; whereas the obligation of a mere Promise, wherein the Promiser bindeth himself but to some man, may be released by that man; and a release from him is to the Conscience of the Promiser a sufficient discharge from the said Obligation : which consideration of what use it will be in the present Case, will in the due place further appear. In the mean time we have evidently proved that this Gentlewoman bound herself by Promise only, and not by Vow. Point II. 5. We are next to inquire concerning the validity thereof, whether or no the Gentlewoman, having an husband at that time, were so disabled in that respect from making such a Promise, that the Promise then made by her, without the husband's consent, was utterly void from the very beginning. For the wife is under the law, and under the power of her Rom. vii. 2. husband, and so is not sui juris, nor can bind herself by Vow, I Cor. vii. 4. Oath, Promise, or otherwise, without the privity and consent of her husband;* which consent we may presume this Gentlewoman never had, the Promise being of that nature, that it had been not only immodesty, but even madness at all to have sought it. And it is certain from the Law of God, by Moses, Num. xxx. to the equity whereof Christians are still bound, because it is 3. founded upon right Reason and the light of Nature, that every Vow and Promise made by a person that of right hath not power to make it is de jure nullum, altogether void from the first instant, and bindeth the party no more than if it never had been made. 6. If any Scruple shall arise from this consideration, that albeit the Promise made by the wife in her husband's lifetime bind her not without his consent, so long as he liveth, because she is all that while under his power; yet after that she is ο Ὕπανδρος γυνή. Rom. vii. 2. * Compare De Juramenti Obligatione, Prael. iv. §. 5. |