OF CUSTOM, AND THAT WE SHOULD NOT EASILY CHANGE A LAW RECEIVED02

If, as we who study ourselves have learned to do, every one who hears a good sentence, would immediately consider how it does in any way touch his own private concern, every one would find, that it was not so much a good saying, as a severe lash to the ordinary stupidity of his own judgment: but men receive the precepts and admonitions of truth, as directed to the common sort, and never to themselves; and instead of applying them to their own manners, do only very ignorantly and unprofitably commit them to memory. But let us return to the empire of custom.

Such people as have been bred up to liberty, and subject to no other dominion but the authority of their own will, look upon all other form of government as monstrous and contrary to nature. Those who are inured to monarchy do the same; and what opportunity soever fortune presents them with to change, even then, when with the greatest difficulties they have disengaged themselves from one master, that was troublesome and grievous to them, they presently run, with the same difficulties, to create another; being unable to take into hatred subjection itself.

'Tis by the mediation of custom, that every one is content with the place where he is planted by nature; and the Highlanders of Scotland no more pant after Touraine; than the Scythians after Thessaly. Darius asking certain Greeks what they would take to assume the custom of the Indians, of eating the dead bodies of their fathers (for that was their use, believing they could not give them a better nor more noble sepulture than to bury them in their own bodies), they made answer, that nothing in the world should hire them to do it; but having also tried to persuade the Indians to leave their custom, and, after the Greek manner, to burn the bodies of their fathers, they conceived a still greater horror at the motion.—[Herodotus, iii. 38.]—Every one does the same, for use veils from us the true aspect of things.

"Nil adeo magnum, nec tam mirabile quidquam

Principio, quod non minuant mirarier omnes Paullatim."

["There is nothing at first so grand, so admirable, which by degrees people do not regard with less admiration."—Lucretius, ii. 1027]

Taking upon me once to justify something in use amongst us, and that was received with absolute authority for a great many leagues round about us, and not content, as men commonly do, to establish it only by force of law and example, but inquiring still further into its origin, I found the foundation so weak, that I who made it my business to confirm others, was very near being dissatisfied myself. 'Tis by this receipt that Plato —[Laws, viii. 6.]—undertakes to cure the unnatural and preposterous loves of his time, as one which he esteems of sovereign virtue, namely, that the public opinion condemns them; that the poets, and all other sorts of writers, relate horrible stories of them; a recipe, by virtue of which the most beautiful daughters no more allure their fathers' lust; nor brothers, of the finest shape and fashion, their sisters' desire; the very fables of Thyestes, OEdipus, and Macareus, having with the harmony of their song, infused this wholesome opinion and belief into the tender brains of children. Chastity is, in truth, a great and shining virtue, and of which the utility is sufficiently known; but to treat of it, and to set it off in its true value, according to nature, is as hard as 'tis easy to do so according to custom, laws, and precepts. The fundamental and universal reasons are of very obscure and difficult research, and our masters either lightly pass them over, or not daring so much as to touch them, precipitate themselves into the liberty and protection of custom, there puffing themselves out and triumphing to their heart's content: such as will not suffer themselves to be withdrawn from this original source, do yet commit a greater error, and subject themselves to wild opinions; witness Chrysippus,—[Sextus Empiricus, Pyyrhon. Hypotyp., i. 14.]—who, in so many of his writings, has strewed the little account he made of incestuous conjunctions, committed with how near relations soever.

Whoever would disengage himself from this violent prejudice of custom, would find several things received with absolute and undoubting opinion, that have no other support than the hoary head and rivelled face of ancient usage. But the mask taken off, and things being referred to the decision of truth and reason, he will find his judgment as it were altogether overthrown, and yet restored to a much more sure estate. For example, I shall ask him, what can be more strange than to see a people obliged to obey laws they never understood; bound in all their domestic affairs, as marriages, donations, wills, sales, and purchases, to rules they cannot possibly know, being neither written nor published in their own language, and of which they are of necessity to purchase both the interpretation and the use? Not according to the ingenious opinion of Isocrates,—[Discourse to Nicocles.]—who counselled his king to make the traffics and negotiations of his subjects, free, frank, and of profit to them, and their quarrels and disputes burdensome, and laden with heavy impositions and penalties; but, by a prodigious opinion, to make sale of reason itself, and to give to laws a course of merchandise. I think myself obliged to fortune that, as our historians report, it was a Gascon gentleman, a countryman of mine, who first opposed Charlemagne, when he attempted to impose upon us Latin and imperial laws.

What can be more savage, than to see a nation where, by lawful custom, the office of a judge is bought and sold, where judgments are paid for with ready money, and where justice may legitimately be denied to him that has not wherewithal to pay; a merchandise in so great repute, as in a government to create a fourth estate of wrangling lawyers, to add to the three ancient ones of the church, nobility, and people; which fourth estate, having the laws in their own hands, and sovereign power over men's lives and fortunes, makes another body separate from nobility: whence it comes to pass, that there are double laws, those of honour and those of justice, in many things altogether opposite one to another; the nobles as rigorously condemning a lie taken, as the other do a lie revenged: by the law of arms, he shall be degraded from all nobility and honour who puts up with an affront; and by the civil law, he who vindicates his reputation by revenge incurs a capital punishment: he who applies himself to the law for reparation of an offence done to his honour, disgraces himself; and he who does not, is censured and punished by the law. Yet of these two so different things, both of them referring to one head, the one has the charge of peace, the other of war; those have the profit, these the honour; those the wisdom, these the virtue; those the word, these the action; those justice, these valour; those reason, these force; those the long robe, these the short;—divided betwixt them.

For what concerns indifferent things, as clothes, who is there seeking to bring them back to their true use, which is the body's service and convenience, and upon which their original grace and fitness depend; for the most fantastic, in my opinion, that can be imagined, I will instance amongst others, our flat caps, that long tail of velvet that hangs down from our women's heads, with its party-coloured trappings; and that vain and futile model of a member we cannot in modesty so much as name, which, nevertheless, we make show and parade of in public. These considerations, notwithstanding, will not prevail upon any understanding man to decline the common mode; but, on the contrary, methinks, all singular and particular fashions are rather marks of folly and vain affectation than of sound reason, and that a wise man, within, ought to withdraw and retire his soul from the crowd, and there keep it at liberty and in power to judge freely of things; but as to externals, absolutely to follow and conform himself to the fashion of the time. Public society has nothing to do with our thoughts, but the rest, as our actions, our labours, our fortunes, and our lives, we are to lend and abandon them to its service and to the common opinion, as did that good and great Socrates who refused to preserve his life by a disobedience to the magistrate, though a very wicked and unjust one for it is the rule of rules, the general law of laws, that every one observe those of the place wherein he lives.

["It is good to obey the laws of one's country."—Excerpta ex Trag. Gyaecis, Grotio interp., 1626, p. 937.]

And now to another point. It is a very great doubt, whether any so manifest benefit can accrue from the alteration of a law received, let it be what it will, as there is danger and inconvenience in altering it; forasmuch as government is a structure composed of divers parts and members joined and united together, with so strict connection, that it is impossible to stir so much as one brick or stone, but the whole body will be sensible of it. The legislator of the Thurians—[Charondas; Diod. Sic., xii. 24.]—ordained, that whosoever would go about either to abolish an old law, or to establish a new, should present himself with a halter about his neck to the people, to the end, that if the innovation he would introduce should not be approved by every one, he might immediately be hanged; and he of the Lacedaemonians employed his life to obtain from his citizens a faithful promise that none of his laws should be violated.—[Lycurgus; Plutarch, in Vita, c. 22.]—The Ephoros who so rudely cut the two strings that Phrynis had added to music never stood to examine whether that addition made better harmony, or that by its means the instrument was more full and complete; it was enough for him to condemn the invention, that it was a novelty, and an alteration of the old fashion. Which also is the meaning of the old rusty sword carried before the magistracy of Marseilles.

For my own part, I have a great aversion from a novelty, what face or what pretence soever it may carry along with it, and have reason, having been an eyewitness of the great evils it has produced. For those which for so many years have lain so heavy upon us, it is not wholly accountable; but one may say, with colour enough, that it has accidentally produced and begotten the mischiefs and ruin that have since happened, both without and against it; it, principally, we are to accuse for these disorders:

"Heu! patior telis vulnera facta meis."

["Alas! The wounds were made by my own weapons."—Ovid, Ep. Phyll. Demophoonti, vers. 48.]

They who give the first shock to a state, are almost naturally the first overwhelmed in its ruin the fruits of public commotion are seldom enjoyed by him who was the first motor; he beats and disturbs the water for another's net. The unity and contexture of this monarchy, of this grand edifice, having been ripped and torn in her old age, by this thing called innovation, has since laid open a rent, and given sufficient admittance to such injuries: the royal majesty with greater difficulty declines from the summit to the middle, then it falls and tumbles headlong from the middle to the bottom. But if the inventors do the greater mischief, the imitators are more vicious to follow examples of which they have felt and punished both the horror and the offence. And if there can be any degree of honour in ill-doing, these last must yield to the others the glory of contriving, and the courage of making the first attempt. All sorts of new disorders easily draw, from this primitive and ever-flowing fountain, examples and precedents to trouble and discompose our government: we read in our very laws, made for the remedy of this first evil, the beginning and pretences of all sorts of wicked enterprises; and that befalls us, which Thucydides said of the civil wars of his time, that, in favour of public vices, they gave them new and more plausible names for their excuse, sweetening and disguising their true titles; which must be done, forsooth, to reform our conscience and belief:

"Honesta oratio est;"

["Fine words truly."—Ter. And., i. I, 114.]

but the best pretence for innovation is of very dangerous consequence:

"Aden nihil motum ex antiquo probabile est."

["We are ever wrong in changing ancient ways."—Livy, xxxiv. 54]

And freely to speak my thoughts, it argues a strange self-love and great presumption to be so fond of one's own opinions, that a public peace must be overthrown to establish them, and to introduce so many inevitable mischiefs, and so dreadful a corruption of manners, as a civil war and the mutations of state consequent to it, always bring in their train, and to introduce them, in a thing of so high concern, into the bowels of one's own country. Can there be worse husbandry than to set up so many certain and knowing vices against errors that are only contested and disputable? And are there any worse sorts of vices than those committed against a man's own conscience, and the natural light of his own reason? The Senate, upon the dispute betwixt it and the people about the administration of their religion, was bold enough to return this evasion for current pay:

"Ad deos id magis, quam ad se, pertinere: ipsos visuros,

ne sacra sua polluantur;"

["Those things belong to the gods to determine than to them; let the gods, therefore, take care that their sacred mysteries were not profaned."—Livy, x. 6.] according to what the oracle answered to those of Delphos who, fearing to be invaded by the Persians in the Median war, inquired of Apollo, how they should dispose of the holy treasure of his temple; whether they should hide, or remove it to some other place? He returned them answer, that they should stir nothing from thence, and only take care of themselves, for he was sufficient to look to what belonged to him. —[Herodotus, viii. 36.].—

The Christian religion has all the marks of the utmost utility and justice: but none more manifest than the severe injunction it lays indifferently upon all to yield absolute obedience to the civil magistrate, and to maintain and defend the laws. Of which, what a wonderful example has the divine wisdom left us, that, to establish the salvation of mankind, and to conduct His glorious victory over death and sin, would do it after no other way, but at the mercy of our ordinary forms of justice subjecting the progress and issue of so high and so salutiferous an effect, to the blindness and injustice of our customs and observances; sacrificing the innocent blood of so many of His elect, and so long a loss of so many years, to the maturing of this inestimable fruit? There is a vast difference betwixt the case of one who follows the forms and laws of his country, and of another who will undertake to regulate and change them; of whom the first pleads simplicity, obedience, and example for his excuse, who, whatever he shall do, it cannot be imputed to malice; 'tis at the worst but misfortune:

"Quis est enim, quem non moveat clarissimis monumentis

testata consignataque antiquitas?"

["For who is there that antiquity, attested and confirmed by the fairest monuments, cannot move?"—Cicero, De Divin., i. 40.] besides what Isocrates says, that defect is nearer allied to moderation than excess: the other is a much more ruffling gamester; for whosoever shall take upon him to choose and alter, usurps the authority of judging, and should look well about him, and make it his business to discern clearly the defect of what he would abolish, and the virtue of what he is about to introduce.

This so vulgar consideration is that which settled me in my station, and kept even my most extravagant and ungoverned youth under the rein, so as not to burden my shoulders with so great a weight, as to render myself responsible for a science of that importance, and in this to dare, what in my better and more mature judgment, I durst not do in the most easy and indifferent things I had been instructed in, and wherein the temerity of judging is of no consequence at all; it seeming to me very unjust to go about to subject public and established customs and institutions, to the weakness and instability of a private and particular fancy (for private reason has but a private jurisdiction), and to attempt that upon the divine, which no government will endure a man should do, upon the civil laws; with which, though human reason has much more commerce than with the other, yet are they sovereignly judged by their own proper judges, and the extreme sufficiency serves only to expound and set forth the law and custom received, and neither to wrest it, nor to introduce anything, of innovation. If, sometimes, the divine providence has gone beyond the rules to which it has necessarily bound and obliged us men, it is not to give us any dispensation to do the same; those are masterstrokes of the divine hand, which we are not to imitate, but to admire, and extraordinary examples, marks of express and particular purposes, of the nature of miracles, presented before us for manifestations of its almightiness, equally above both our rules and force, which it would be folly and impiety to attempt to represent and imitate; and that we ought not to follow, but to contemplate with the greatest reverence: acts of His personage, and not for us. Cotta very opportunely declares:

"Quum de religione agitur, Ti. Coruncanium, P. Scipionem, P. Scaevolam, pontifices maximos, non Zenonem, aut Cleanthem, aut Chrysippum, sequor."

["When matter of religion is in question, I follow the high priests T. Coruncanius, P. Scipio, P. Scaevola, and not Zeno, Cleanthes, or Chrysippus."—Cicero, De Natura Deor., iii. 2.]

God knows, in the present quarrel of our civil war, where there are a hundred articles to dash out and to put in, great and very considerable, how many there are who can truly boast, they have exactly and perfectly weighed and understood the grounds and reasons of the one and the other party; 'tis a number, if they make any number, that would be able to give us very little disturbance. But what becomes of all the rest, under what ensigns do they march, in what quarter do they lie? Theirs have the same effect with other weak and ill-applied medicines; they have only set the humours they would purge more violently in work, stirred and exasperated by the conflict, and left them still behind. The potion was too weak to purge, but strong enough to weaken us; so that it does not work, but we keep it still in our bodies, and reap nothing from the operation but intestine gripes and dolours.

So it is, nevertheless, that Fortune still reserving her authority in defiance of whatever we are able to do or say, sometimes presents us with a necessity so urgent, that 'tis requisite the laws should a little yield and give way; and when one opposes the increase of an innovation that thus intrudes itself by violence, to keep a man's self in so doing, in all places and in all things within bounds and rules against those who have the power, and to whom all things are lawful that may in any way serve to advance their design, who have no other law nor rule but what serves best to their own purpose, 'tis a dangerous obligation and an intolerable inequality:

"Aditum nocendi perfido praestat fides,"

["Putting faith in a treacherous person, opens the door to harm."—Seneca, OEdip., act iii., verse 686.]

forasmuch as the ordinary discipline of a healthful state does not provide against these extraordinary accidents; it presupposes a body that supports itself in its principal members and offices, and a common consent to its obedience and observation. A legitimate proceeding is cold, heavy, and constrained, and not fit to make head against a headstrong and unbridled proceeding. 'Tis known to be to this day cast in the dish of those two great men, Octavius and Cato, in the two civil wars of Sylla and Caesar, that they would rather suffer their country to undergo the last extremities, than relieve their fellow-citizens at the expense of its laws, or be guilty of any innovation; for in truth, in these last necessities, where there is no other remedy, it would, peradventure, be more discreetly done, to stoop and yield a little to receive the blow, than, by opposing without possibility of doing good, to give occasion to violence to trample all under foot; and better to make the laws do what they can, when they cannot do what they would. After this manner did he—[Agesilaus.]—who suspended them for four-andtwenty hours, and he who, for once shifted a day in the calendar, and that other—[Alexander the Great.]—who of the month of June made a second of May. The Lacedaemonians themselves, who were so religious observers of the laws of their country, being straitened by one of their own edicts, by which it was expressly forbidden to choose the same man twice to be admiral; and on the other side, their affairs necessarily requiring, that Lysander should again take upon him that command, they made one Aratus admiral; 'tis true, but withal, Lysander went general of the navy; and, by the same subtlety, one of their ambassadors being sent to the Athenians to obtain the revocation of some decree, and Pericles remonstrating to him, that it was forbidden to take away the tablet wherein a law had once been engrossed, he advised him to turn it only, that being not forbidden; and Plutarch commends Philopoemen, that being born to command, he knew how to do it, not only according to the laws, but also to overrule even the laws themselves, when the public necessity so required.