-it be done by the force of authority: for the similitude of reason is not enough; and, therefore, either the supreme, or a jurisdiction delegate with this power in special, is necessary. But where there is such a power, the way of doing it is procedendo de similibus ad similiat;' the occasion of supply must be taken from the similitude of the reason. But this, I say, is to be done either in cases of public necessity, or great equity and questions of favour: in other cases, there are yet more restraints.

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27. A similitude of reason, except in the cases now expressed, does not extend the law to cases not comprehended in the words and first meaning of the law. For "ratio legis non est lex, sed quod ratione constituitur," say the lawyers"; every thing that is reasonable, is not presently a law,—but that is the law, which, for that reason, is decreed." And when a thing is propounded to a prince, it is in the body politic, as in the body natural; though the understanding propound a thing as reasonable, the will still hath power to choose or to reject it; and there may be reason for the thing in one regard, and reason against it in another; and if the reason in both cases only be alike, they are also unlike. "Omne simile est etiam dissimile." For Titius contracts friendship with Callinicus, because their fathers were fellowsoldiers in the Parthian war, and they loved well; but Titius refuses to contract the same league with Catulus, although the like reason was for him, his father having been in the same legion, in the same war; but Catulus was an ill-natured man, and not fit to be entertained into such societies.

28. The conscience is not bound to a greater duty, than is expressed in the words and first meaning of the law, by the proportion and communication of the reason, unless the reason be not only alike, but be absolutely the same in both cases; and not only so, but that the reason was adequate to the law, that is, was the reason which actually and alone did procure the sanction of the law. When Cæsar took-in a town in Gallia Narbonensis, he destroyed the walls, and commanded they should not build any more walls: they consented, but cast up a trench of earth; and he came and fired their town, because although a trench of earth was not * Glossa in legem Prædict. u Albertus Bologneti Bonon. in Tract. D.D. VOL. XIV.

S

in the words of the contract, or prohibition,-yet, because Cæsar forbade the rebuilding of the walls, for no other reason but because he would not have it fortified, the law against walls was to be extended to trenches also, for the identity of an adequate reason. To the same purpose is that of Quintilian: "Cædes videtur significare sanguinem et ferrum: si quis alio genere homo fuerit occisus, ad illam legem revertemur." A law against murder, does commonly signify shedding of his blood; but if a man have his neck broken, or be smothered with pillows, or strangled with a bowstring, he shall be avenged with the same law, that forbade he should be killed with a knife or dagger: for it was not the instrument or the manner which the law regarded, but it wholly intended to secure the lives of the subjects.

29. Now this identity of reason must be clear and evident, or else it effects nothing; for, in matters of doubt, the presumption is for liberty and freedom. But it commonly is best judged by one or more of these following cases. 1. The relative and the correlative are to be judged by the same reason, when the reason of the law does equally concern them, though only one be named in the provision of the law. If the husband must love the wife, the wife must love the husband, though she were not named in the law. For here they are equal. But, in superior and inferior, the reason cannot be equal, but therefore is only to be extended to the proportion of the reason. A son must maintain his father that is fallen into poverty, and so must a father a son: but they are not tied to equal obedience: to equal duty they are, but not to equal significations and instances of it. A husband must be true to his wife's bed, and so must she to his; but she may not be admitted to an equal liberty of divorce, as he is: the reason is, because the duty is equal, but the power is unequal; and therefore the consequents of this must differ, though the consequents of the other be the same. 2. The identity of the reason is then sufficient for the extension of the law, when one thing is contained under another, a particular under a general, an imperfect under a perfect, a part under the whole. 3. When the cases are made alike by the effort of other laws. 4. When the law specifies but one

* In Declam. Patris.

case for example's sake, the rest also of the same nature and effect are comprehended. 5. When the cases are radicated in the same principle, and are equally concerned.

30. What is here said concerning cases and actions, is also to be understood not only of persons, which cannot be separated from the consideration of actions, which are always personal, but of places and times, when the analogy and force of the reason or the words require it. Only each of these is to observe their proper caution. Places are equally included in the meaning of the law, though they be not expressed in the words of the law, if they be within the jurisdiction of the lawgiver, that is, within the capacity of the lawy. But the caution concerning time is this,-that although, in laws declarative, there is no difference of time, because there the present law is not the measure of our duty, but supposes the duty limited and prescribed before ( nihil enim nunc dat, sed datum significat,' saith the law in this case ;)—yet laws, constitutive or introductive of a new right or oblation, never of themselves regard, or can be extended to, what is past,-because this not in our power, and is not capable of counsel or authority; but they can only be extended to the future: but the allay is this, for this is to be understood only in precepts and prohibitions, but not in matters of indulgence and favour; for in this it is quite contrary. What the law hath forbidden in time past or present, and what she hath or doth command, is to be extended to the future: but "cuma lex in præteritum quid indulget, in futurum vetat;"" when the law gives a pardon for what is past, and this pardon relies upon a proper reason, there is no leave given for the future to do so," though the same reason shall occur; for the pardon of what went before, is a prohibition of what is to come hereafter.

31. When a law is made to take away an evil, it is to be understood also, and to be extended, to all cases of prevention, and from an actual evil passes on to a probability. When Antiochus agreed, that Ptolemy should not bring an army into Syria, he did not only intend to remove the pre

See chapter 1. rule 8. of this book.

z Lib. Hæredes. sect. 1. de Testam.
Lib. Cum lex. ff. de Legib.

sent hostility that he feared, but he intended also that he should not bring any at all, though for passage only, through his country; because if his army were at all in Syria, he was in danger of suffering what, by his treaty, he desired to prevent.

32. Whatsoever is said in laws, is also true in promises and contracts: for these are laws to the contractors and interested persons, and to be measured by the same proportions. For when the adequate reason of a promise or contract is evidently extended to another instance, though not named in the contract, it must be performed and supposed, as included in the stipulation, and so still in the succeeding and new-arising instances: and the state of things is not changed so long as that adequate reason remains, for which the obligation was first contracted, though the thing be varied in a thousand other circumstances and accidents. But of this I shall have better opportunity to speak in the last book.

33. I only add this one thing, That there is great caution to be used in determining our cases of conscience by the measures of the reason of a law. For " non omnium, quæ à majoribus constituta sunt, ratio reddi potest," said Julian "it will be hard to find out what was the reason of the laws made by our forefathers ;" and unless the reason be expressed in the law, our conjectures are very often so wild and far amiss, that they will be very ill measures of conscience or obedience. "Et ideo rationes eorum, quæ constituuntur, inquiri non oportet; alioquin multa ex iis, quæ certa sunt, subvertenturb." We must obey the law, and never inquire after the reason, unless the law of itself declare it: it is not good to examine, for by this means many clear laws are made obscure and intricate. "Delicata est illa obedientia, quæ causas quærit." The lawgiver is moved to the sanction of the law by the reason of the thing; but the sanction of the law is to be the only reason of our obedience.

b Ff. de Leg.

Sect. 4. Dispensation.

RULE IV.

The Legislator hath Authority to dispense in his own Laws, for any Cause, that himself prudently shall judge to be reasonable, so that no distinct Interest be prejudiced or injured.

1. DISPENSATION differs from interpretation of laws; because this does declare the law in certain cases not to bind; but dispensation supposes the law in actual obligation, not only in general, but in this case, and to this person; and it is but like the old man's (in the fable) laying aside his burden of sticks, which he is bound to carry with him to his long home, unless some friendly person come to help him. But dispensation differs from diminution of laws by a ceasing or a contrary reason; because the law ceases, of itself, in this case, but, in dispensation, wholly by the will of the prince. And lastly, it differs from equity, because equity is law, melior lex,' but dispensation is a remission of the law; and the cases of equity are such, as by justice must be eased; but, in dispensations, there is nothing but benignity and favour. So that dispensation is a voluntary act of the prince's grace and favour, releasing to any single person or community of men the obligation of the law, others at the same time remaining bound, not only in other cases, but in the same and in the like.' For although the same and the like cases of equity do procure remission to all alike, yet in dispensations it is not so. One may be eased, and another not eased, in the very same case. And the not understanding or not considering this great and material difference, hath caused so great errors both in the understanding and in the ministries of dispensation.

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2. For if we use the word improperly, dispensation can signify a declaration made by the superior, that the subject, in certain cases, is not obliged, that the lawgiver did not intend it. But this is interpretation of laws, or a declaration of the equitable part of the law, and is not properly an act of authority, but of doctrine and wisdom; save only, that that doctrine and that wisdom shall be esteemed authentical, and a warranty in doubtful cases: but if the subject did know the meaning of the law, as in most cases he may,-his conscience