II.

liberate acts, but judgeth them to have been indeliberate DISCOURSE acts, whensoever he findeth them to have been justly destitute of all manner of deliberation: from whence did arise the well known distinction between manslaughter and wilful murder in our law. Murder committed upon actual deliberation is held to be done maliciously-"ex malitia suâ ;" but if it proceed out of sudden passion, it is found only manslaughter. The same equity is observed in the judicial law. He who did kill another" suddenly without enmity," Numb. was allowed the benefit of the city of refuge. Lastly, in xxxv.[22.] many cases the judge cannot judge, that the agent had sufficient time to deliberate, nor that it was his fault that he did not deliberate, for really he had not sufficient time to deliberate.

cannot pre

contingent

And where he talketh, that the judge supposeth "all the A man time" after the making of the law to have been "time of deli- deliberate beration"," he erreth most pitifully. There needeth little or perfectly of no time to deliberate of the law. All the need of delibera- events. tion is about the matter of fact, and the circumstances 832 thereof. As, for example, a sudden affront is put upon a man, which he did not expect nor could possibly imagine, such as he apprehendeth that flesh and blood cannot endure, and conceiveth himself engaged in honour to vindicate it forthwith. This is that which required deliberation; the nature and degree of the affront, the best remedies how to procure his own reparation in honour, the inconveniences that may arise from a sudden attempt, and the advantage which he may make of a little forbearance, with all the circumstances of the accidents. How could he possibly deliberate of all these things, before any of these things were imaginable? He could neither certainly divine, nor probably conjecture, that ever such an accident should happen. And therefore it remaineth still a gross contradiction in him, to say, that voluntary always supposeth deliberation, and yet to confess, that many voluntary acts are undeliberate".

Whereas he saith, that he always used the word sponta- [Spontaneity.]

PART
III.

neous in the same sensed, he must excuse me if I cannot assent unto it. In one place he telleth us, that "by spontaneity is meant inconsiderate proceeding, or else nothing is meant by ite." In another place he telleth us, that to give out money for merchandize" is a "spontaneous" action. All the world knoweth, that to buy and sell doth require consideration.

II.

be any labour in vain. It remaineth, therefore, upon his DISCOURSE own grounds, that extrinsecal causes whensoever they do not take away endeavours are extrinsecal impediments and destroy liberty.

be impedi

beration be

He saith, one "may deliberate of that which is impossible There may for him to do." True, if he apprehend it as possible, and ments bejudge it to be possible; or, otherwise, he is stark mad to de- fore deliliberate about it. The shutting of the door of the tennis- done. court' is "no impediment to play, until a man have a will to play, and that is not until he have done deliberating." Yes, even in the act of deliberation, the finding of the door of the tennis-court shut determineth the deliberation, changeth the will, and may be the only impediment which hindereth a man from playing. One may have a will to play before deliberation, sometimes more absolute, out of humour, than after. Many times the last judgment is conditional; as, to play if the door be open, and if the court be not taken up beforehand; and if it be shut, or the place taken up, then to go to bowls, or some other exercise.

is

Wheresoever the judgment is indifferent, to do either And liberthis or that, or conditional, to do this upon such conditions, ty when it it is not the deliberation or the last judgment that doth determine the liberty of the free agent, but leaveth him free to choose either part, or to suspend his consent to both parts, pro re natá. So liberty may remain after deliberation is done. Although he did not use these words, "sensitive appetite-rational hope-rational fear-irrational passions," nor "confound" the terms of "sufficiency" and "efficiency," or "beginning of being" and "beginning of working"," yet he might confound the thing whereof these terms are but notions; and so he doth.

833 All men do understand well enough what secret sympa- [Secret sympathies

thies and antipathies are, except such as are captious; though and antimen understand not usually why they are, as why one man pathies.] gapeth at a custard rather than at a pie, and runneth away from a cat rather than from a mastiff. When I say, "it is thus far true, that the action doth follow the thought necessarily" (namely in antipathies and violent passions, which admit no

PART deliberation °), he demandeth, "how far it is false P." I answer, III. it is false in ordinary thoughts, which are not accompanied with such violent passions. A man thinketh a thousand things in a day accidentally, which he never putteth in execution; nor so much as thinketh them worthy of deliberation.

[Habits facilitate actions.]

Some undeliberat

able.

No man would have denied, that habits do facilitate actions, and render them less difficult and cumbersome, and consequently more easy and more free, but he that meant to make himself ridiculous. He might even as well tell us, that he who gropeth in the dark for every step, is as free to walk as if it were fair day-light; or that a foundered horse, that is afraid to stumble every foot, is as free to go, as he which is sound and goeth on boldly without fear. But all this abuse groweth from the misunderstanding of liberty. I take it for a power to act or not to act, and he taketh it for "an absence of outward impediments." This confounding of words, and the heaping together of Scholastical terms with scorn, because he never understood them, are the chiefest ingredients in his discourse. I am not ashamed of "motus primo primi," or "judicium practice practicum," or "actus elicitus" and "imperatus." But he hath great reason to be ashamed of his slighting them; which he would not do, but that he never learned them, and so would make a virtue of culpable necessity. He saith, he "will not contend with one who can use 'motus primo primi," &c. He is the wiser, to have as little to do with scholars as he can. His best play is in the dark, where there is no fencing.

We both agree, that some sudden undeliberated acts are ed acts may justly punished. His reason is, because the agent "had time be punish- to deliberate from the instant that he knew the law to the instant of his action." But I have shewed the vanity of this reason, and that it was impossible to deliberate of sudden affronts and injuries which could not be expected or foreseen. But if the occurrences or accidents were such as were

II.

foreseen, or whereof the agent was premonished, and he DISCOURSE did deliberate of them, or if it was his own fault or improvidence that they were not foreseen nor deliberated of, then he is punishable, because his predeliberation about some such accident as might probably happen, was a virtual deliberation about this very act, which did afterward happen, though it were not then acted but only expected; or because he refused or neglected to fore-arm himself by deliberation against a surprise.

liberation.

Here he cavilleth about terms of actual and virtual deli- Virtual deberation, as his manner is;-" If virtual deliberation be not actual deliberation, it is no deliberation;" adding, that I " call virtual deliberation, that which ought to have been and was not"." He mistaketh the matter. I call " virtual deliberation" a former deliberation about this very act, feared or expected out of providence or premonition before it was acted, or about some act of the like nature. So it was an actual deliberation, yet not about this very act. But it might have served to have prevented the agent's being surprised, and have had the same virtue as if it had been an actual deliberation about this very accident. Did he never learn nor hear of the distinction in philosophy between "contactus verus" and "contactus virtualis”. -"true touching" and "virtual touching?"-"true touching," when the superficies of two bodies. are together, so as they can move and be moved mutually; and "virtual touching," when the virtue of one body doth extend itself to another, as it is between the sun and the earth, the loadstone and the iron, the hand of the caster and the stone moving upwards in the air. His argument holdeth as much in all the [se] cases as in this of deliberation. If "virtual touching" be not "true touching," it is no touching; and if virtual motion be not true motion, it is no motion. I shall find English enough at all times to answer him.

Concerning my instance, which he saith, pleasantly, doth "stink to the nose of the understanding," I desire him only to read the fifteenth chapter of Leviticus. I am sure he dare not call that a "stinking" passage.