Jeremy Taylor.

The whole works of the Right Rev. Jeremy Taylor (Volume 11) online

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however, evil is the portion of the sinner.

16. (3.) In all those threatenings which are according to
the analogy of the Gospel, or the state of things and per-
sons with which we have intercourse, we may take all that
liberty that can by apt instruments concur to the work of
God ; dressing them with circumstances of terror and
affrightment, and representing spiritual events by metaphors,
apologues, and instances of nature. Thus our blessed Lord,
expressing the torments of hell, signifies the greatness of
them by such things which in nature are most terrible ; as
" brimstone and fire, the worm of conscience, weeping, and
wailing, and gnashing of teeth." But this, I say, must ever
be kept within the limits of analogy to what is revealed, and
must not make excursions to extraregular and ridiculous
significations. Such as is the fancy of some divines in the
Roman Church, and particularly of Cornelius a Lapide, 8 that
the souls of the damned shall be rolled up in bundles like a
heap and involved circles of snakes, and in hell shall sink
clown like a stone into the bottomless pit, falling still
downward for ever and ever. This is not well ; but let the

1 Cor. xi. 30. a In Apocul.


expressions be according to the proportions of what is
revealed. The divines in several ages have taken great
liberty in this affair, which I know no reason to reprove, if
some of their tragical expressions did not, or were not apt
to, pass into dogmatical affirmatives and opinions of reality
in such inventions.

17. (4.) If any extraregular example hath ever happened,
that may be made use of to affright men from the same or
the like sins, and so pass into a regular warning. Thus,
though it but once happened, that God punished rebellion
by causing the earth to open and swallow up the rebels
against their prince and priest, Moses and Aaron, that is, it
is but once recorded in Holy Scripture ; yet God hath the
same power now, and the same anger against rebellion ; and
as he can, so we are not sure that he will not oftentimes do
the same. Whatsoever hath happened, and can happen, we
ought to fear, lest in the like cases it should happen. And
therefore this is a proper instrument of a just fear, and apt
rightly to minister to a sure and a right conscience.

18. (5.) If any prodigy of accident and judgment hath
happened, though it be possible it may be done for the
manifestation of the Divine glory, yet because it is ten thou-
sand to one but it is because of sin too ; this may be made
use of to affright sinners, although there be no indication for
what sin that judgment happened. Thus the ruin of the
Greek monarchy finished upon the day of Pentecost ; the
fearful and prodigious swallowing up the cities of the Colos-
sians and Laodiceans ; the burning towns and villages by
eruption of fire from mountains ; the sudden cataracts of
water breaking from the Indian hills ; the sudden death and
madness of many people ; the horrible ruin and desolation
of families and kingdoms, may be indifferently used and pro-
pounded to all sorts of persons, where there is^need of such
violent courses: and provided that they be charitably and
prudently applied, may effect fear and caution in some
sinners, who otherwise would be too ready for gaieties and
unsafe liberties.

19. (6.) To children and fools, and all those whose
understanding is but a little better, it hath been in all
ages practised, that they be affrighted with mormoes and
bugbears, that they may be cozened into good. But this is


therefore permitted, because other things which are real, cer-
tain, or probable, cannot be understood or perceived by
them : and therefore these things are not to be permitted,
where it can well be otherwise. If it cannot, it is fit that
their understandings should be conducted thither where they
ought to go, and by such instruments as can be useful.


A Conscience determined by the Counsel of wise Men, even
against its own Inclinations, may be sure and right.

FOR in many cases the counsel of wise men is the best
argument ; and if the conscience was first inclined by a
weaker, every change to a better is a degree of certainty.
In this case, to persist in the first inclination of conscience
is obstinacy, not constancy ; but on the other side, to change
our first persuasion when it is well built, for the counsel of
men of another persuasion, though wiser than ourselves, is
levity, not humility. This rule is practicable only in such
cases where the conscience observes the weakness of its first
inducement, or justly suspects it, and hath not reason so
much to suspect the sentence of wiser men. How it is
further to be reduced to practice, is more properly to be
considered in the third chapter, and thither I refer it.


He that sins against a right and sure Conscience, whatever the
Instance be, commits a great Sin, but. not a double one.

1 . His sin is indeed the greater, because it is less excusable
and more bold. For the more light there is in a regular
understanding, the more malice there is in an irregular will.
" If I had not come to them (said Christ), 3 they had not had
sin ; but now have they no cover for their sin ; " that is,
because they are sufficiently taught their duty. It is not an
aggravation of sin, barely to say, 'It was done against our

a John, xv. 22.


conscience:' for all sins are so, either directly or indirectly,
mediately or immediately, in the principle or in the ema-
nation. But thus ; the more sure and confident the con-
science is, the sin receives the greater degree. It is an
aggravation of it, that it was done against a clear light, and a
full understanding, and a perfect, contrary determination.

2. But even then it does not make it to be a distinct sin.
" Whatsoever is not of faith, is sin," said the apostle ; but
he did not say it was two. It is a transcendent passing upon
every sinful action, that it is against a known law, and a con-
trary reason and persuasion ; but if this could make the act
to be doubly irregular, by the same reason, every substance
must be two, viz. by htiving a being, and a substantial being.
And the proper reason of this is, because the conscience
obliges and ties us by the band of the commandment, the
same individual band, and no other. The conscience is there-
fore against the act, because the commandment is against
it; the conscience being God's remembrancer, the record,
and the register of the law. A thief does not sin against
the law and the judge severally ; neither does the magistrate
punish him one way and the law another. The conscience
hath no law of its own, but the law of God is the rule of it.
Therefore, where there is but one obligation to the duty,
there can be but one deformity in the prevarication. But,

3. In sins where there is a double formality, there, indeed,
in one action there may be two sins, because there is a double
law : as he that kills his father, sins twice, he is impious
and unjust ; he breaks the laws of piety and justice ; he sins
against the fifth and the -sixth commandments at once; he
is a murderer, and he is ungrateful, and he is impious. But
in sins of a single nature, there is but a single relation. For
the conscience and the law is the rule and the parchment ;
and he that sins against the one, therefore also sins against
the other, because they both terminate but one relation.

4. But although he does not commit two sins, yet he
commits one great one, there being nothing that can render
an action culpable or imputable in the measures of justice,
but its being a deviation from, or a contradiction to, the
rule. It is against my conscience, that is, against my il-
luminated and instructed reason, therefore it is a sin : this
is a demonstration, because it is against God, and against


myself; against my reason, and his illumination ; that is,
against all bands, Divine and human.

5. Quest. But then what shall a judge do, who knows
the witnesses in a criminal cause to have sworn falsely ? The
case is this : Conopus, a Spartan judge, walking abroad near
the gardens of Onesicritus, espies him killing of his slave
Asotus ; who, to palliate the fact, himself accuses another of
his servants, Orgilus and compelled some to swear it as he
affirmed. The process was made, advocates entertained by
Onesicritus, and the poor Orgilus convict by testimony and
legal proof. Conopus, the judge, knows the whole process
to be injurious, but knows not what to do, because he
remembers that he is bound to judge according to allegation
and proof, and yet to do justice and judgment, which, in
this case, is impossible. He therefore inquires for an expe-
dient, or a peremptory resolution on either hand : since he
offends against the laws of Sparta, the order of law, and
his own life, if he acquits one who is legally convicted ;
and yet, if he condemns him whom he knows to be inno-
cent, he sins against God and nature, and against his own

6. That a judge not only may, but is obliged to, proceed
according to the process of law, and not to his own private
conscience, is confidently affirmed by Aquinas, by his master,
and by his scholars, and, of late, defended earnestly by Dida-
cus Covaruvias, a learned man indeed and a great lawyer ;
and they do it upon this account :.

7. (1.) For there is a double person or capacity in a judge;
he is a private person, and hath special obligations and duties
incumbent upon him in that capacity: and his conscience
hath a proper information, and gives him laws, and hath no
superior but God : and as he is such a one, he must proceed
upon the notices and persuasions of his conscience, guided
by its own measures. But as he is a judge, he is to do the
office of a judge, and to receive information by witnesses
and solemnities of law, and is not to bring his own private
conscience to become the public measure. Not Attilius
Regulus, but the consul, must give sentence : and since he is
bound to receive his information from witnesses, as they
prove, so the law presumes ; whose minister because he is,
if there be any fault, it is in the law, not in the judge ; and in


this case, the judge does not go against his conscience,
because by oath he is bound to go according to law. He,
indeed, goes against his private knowledge ; but that does not
give law to a judge, whose knowledge is to be guided by other
instruments. (2.) And it is here as in case of execution of
sentences, which is another ministry of law. " Ordinarius
tenetur obsequi delegate, etsi sciat sententiam illam injustam,
exequi nihilominus tenetur eandem," said Innocentius III. C
The executioner is not to refuse his office, though he know
the judge to have condemned an innocent ; for else he might
be his judge's judge, and that not for himself alone, but also
for the public interests. For if an executioner, upon his per-
suasion that the judge did proceed unjustly against the life
of an innocent, shall refuse to put him to |death, he judges
the sentence of the judge over again, and declares publicly
against it, and denies to the commonwealth the effect of his
duty : so does a judge, if he acquits him whom the law con-
demns, upon the account of his private knowledge. (3.) It is
like speaking oracles against public authority from a private
spirit. (4.) Which thing, if it were permitted, the whole order
and frame of judicatures would be altered, and a door opened
for a private and an arbitrary proceeding; and the judge, if
he were not just, might defame all witnesses, and acquit any
criminal, and transfer the fault to an innocent and unsus-
pected, and so really do that which he but pretends to avoid.
(5.) And the case would be the same, if he were a man confi-
dent and opinionative. For, he might seem to himself to be as
sure of his own reason, as of his own sense ; and his conscience
might be as effectively determined by his argument as by his
eyes ; and then by the same reason he might think himself
bound to judge against the sentence of the law, according
to his own persuasion, as to judge against the forms of law,
and proceedings of the court, according to his own sense.
(6.) And therefore not only in civil, but in the ecclesiastical
courts, we find it practised otherwise : and a priest may not
refuse to communicate him, whom he knows to have been
absolved upon a false allegation, and unworthily ; but must
administer sacraments to him according to the public voice,
not to his own private notice ; for it would be intolerable, if
that which is just in public should be rescinded by a private
c Cap. Pastoralis, sect. Quia Verode Officioet Potestate Judicis Delegati.


pretence, whether materially just or no ; not only because
there are other measures of the public and private, and that
to have that overborne by this would destroy all government ;
but because if this private pretence be admitted, it may as
well be falsely as truly pretended ; and therefore, since real
justice by this means cannot be secured, and that unless it
were, nothing could make amends for the public disorder, it
follows that the public order must be kept, and the private
notice laid aside. (7.) For the judge lays aside the affections
of a man, when he goes to the seat of judgment ; and he lays
aside his own reason, and submits to the reason of the law,
and his own will, relinquishing that to satisfy the law ; and
therefore he must bring nothing of a private man with him,
but his own abilities fitted for the public. (8.) And let no
man in this case pretend to zeal for truth and righteousness ;
for since in judicatures, legal or seeming truth is all that can
be secured, and with this the laws are satisfied, we are sure
we may proceed upon the testimony of concurring witnesses,
because they do speak legal truth ; and that being a propor-
tionable conduct to legal persons, is a perfect rule for the
conscience of a judge ; according to the words of our blessed
Saviour quoted out of Moses's law, " It is written in your
law, The testimony of two men is true," d that is, it is to be
accepted as if it were true, and proceedings are to be accord-
ingly. In pursuance and verification of this, are those words
of St. Ambrose : e " Bonus judex nihil ex arbitrio suo facit, et
domesticae proposito voluntatis, sed juxta leges et jura pro-
nunciat, scitis juris obtemperat, non indulget propriae volun-
tati, nihil paratum et meditatum domo defert, sed sicut
audit, ita judicat; A good judge does nothing of his will,
or the purpose of his private choice, but pronounces accord-
ing to laws and public right, he obeys the sanctions of the
law, giving no way to his own will, he brings nothing from
home prepared and deliberated, but as he hears, so he judges."
This testimony is of the more value, because St. Ambrose had
been a judge and a ruler himself in civil affairs, and therefore
spake according to the sense of those excellent laws, which
almost all the civil world have since admitted. (9.) And
the thing is confessed in the parallel cases : for a judge may
not proceed upon the evidence of an instrument which he

d John, viii. e In Psalm cxviii.



hath privately perused, if it be not produced in court, though
he by that could be enabled to do justice to the oppressed
party ; for he does not know it as a judge, but as a private
man ; and though that be a distinction without a real differ-
ence of subject, yet in effect it means, that the laws do not
permit a judge to take notice of any private information,
which might prove an inlet to all manner of violence and
robbery. (10.) And therefore if a priest hearing the con-
fession of Caius, understands that Titius was the complice of
Caius's crime, he may not refuse to absolve Titius, though
he do not confess the fact in which he took part with Caius ;
because he is to proceed by the method of that court where
he sits judge. For private and personal notice is not suffi-
cient. (11.) And if I do privately know that my neighbour
is excommunicate, I am not bound to refuse him my society,
till I know it legally ; and therefore much less may a judge
do a public act upon private notice, when we may not do
even a private act referring to law without a public notice.
(12.) And all this is confirmed by the authority of Ulpian : f
" Veritas rerum erroribus gestarum non vitiatur, et ideo
praeses provinciae id sequatur, quod convenit eum ei fide
eorum quse probabuntur ; The truth of things is not pre-
judiced by errors in matters of fact : and therefore let the
president of the province follow that which is fitting for
him, proceeding by the faith of those things which shall be
proved." (13.) For since no man must judge by his own
private authority, he must not judge by his own private
knowledge. (14.) And to what purpose shall he call in
witnesses, to give him public information, if when they have
done so, he by his private may reject the public ?

8. But if after all this you inquire, ' What shall become
of the judge as a man, and what of his private conscience ?'
these men answer, that the judge must use what ingenious
and fair artifices he can to save the innocent, or to dojustice
according to truth, but yet so as he may not prevaricate the
duty of a judge : he may use the prudence of a friend and a
private man : let him, by various and witty interrogatories,
in which he may be helped by the advantage of his private
knowing the secret, make ways to entrap the false witnesses,
as Daniel did to the two elders in the case of Susanna : or

' L. Illicita, sect. Veritas.


let him refer the cause to the supreme power, or resign his
office, or make a deputation to another, or reprieve the
injured man, or leave a private way for him to escape, or
use his power of interpretation, or find some way to elude
the unjust hand of justice, which in this case does him
wrong by doing right. But if none of these ways, nor any
other like them, can preserve the innocent man, or the
judge's private conscience, he must do justice according to
law, standing upright as a public person, but not stooping
to particulars, or twisting himself by his private notices.

9. This is the sum of what is or can be said in this
opinion ; and though they speak probably and well, yet I
answer otherwise, and I suppose, for reasons very consider-
able. Therefore,

To the question, I answer, that a judge in this case may not
do any public act against his private conscience; he may not
condemn an innocent whom he knows to be so, though he be
proved criminal by false witnesses. And my reasons are these :

10. (1.) " Innocentem et justum non occides," said God ; g
To slay an innocent person is absolutely and indispensably
evil. Upon which ground I argue ; That which is in its own
nature essentially and absolutely evil, may not be done for
any good, for any pretence, for any necessity, nor by any
command of man. Since, therefore, in the present case, the
man is supposed innocent, he ought not to be delivered to
death for any end in the world, nor by any authority, much
less for the preservation of the forms of courts, or to prevent
a possible evil that may accidentally and by abuse arise ;
especially since the question here is not matter of prudence or
policy, but of justice and conscience; nor yet of the public
interest, but of the judge's duty ; nor at all, what the laws
actually do constitute and appoint, but what the judge may
really practise. Now, in all cases, if a man dies, it must be
by the merit of the cause, or for some public end. The first
is not supposed in this question, because the man is sup-
posed innocent ; and if the latter be pretended, it is an open
profession of doing evil that good may come of it. And if
it be answered, that this is true, if the man did appear to be
innocent, but in law he appears otherwise : I reply, that it is
true, to the law he does so, but not to the judge ; and therefore,

g Exod. xiii. 7.


though the law can condemn him, yet she cannot do it by
that judge. He must not do it, because it being by an un-
avoidable defect or error, that the law may do it, and if the law
could be rightly informed, she would not, she could not, do it,
it follows that the judge who is rightly informed, can no more
do it than the law itself, if she had the same information.

11. (2.) To judge according to forms and processes of
law, is but of human positive right and constitution ; for
the law may command a judge to proceed according to his
own knowledge, if she will trust hirn and his knowledge :
and in all arbitrary courts it is so ; and in the supreme
power it is always so, if it be absolute. But not to condemn
the innocent is of Divine and eternal right, and therefore
cannot be prejudiced by that which only is human. And
indeed if we look into the nature and causes of things, we
shall find, that the reason why judges are tied to forms and
processes of laws, to testimonies and judicial proofs, is, be-
cause the judge is supposed not to know the matters brought
before him, till they appear in the forms of law. For if a
judge did know men's hearts, and the secrets of things and
causes, supposing him to be honest, he were the fittest
person in the world to be a judge, and can proceed sum-
marily, and needs no witnesses. But this is the way of the
Divine judgment, who proceeds upon his own knowledge,
though for the declaration of his justice to men, he some-
times seems to use processes, and measures of human inquiry ;
as in the case of Sodom, and the like. And in proportion,
if God should reveal to a judge the truth of every case that
lies before him, I think no man doubts but he might safely
proceed to judgment upon that account. This was the
case of Daniel and Susanna. For she was convicted and
proved guilty by concurrent witnesses ; God revealed the
truth to Daniel, and he arrested judgment upon that ac-
count. Upon examination of the witnesses he finds them
disagree in the circumstances ; but this was no legal con-
viction of their falsehood in the main ; but it was therefore
sufficient, because Daniel came in the manner of a prophet,
and knew the truth from God, not by forms of law. Now
it matters not, as to the justice of the proceeding, which
way the truth be known ; for the way of receiving it is but
extrinsical to the main question : and as Daniel, being made


judge by God, might not have consented to the death of
Susanna, though not only the two elders, but ten more,
had sworn that they had seen Susanna sin ; so neither cau
a judge, to whom God by some special act of providence in
behalf of truth and innocence hath made known the matter,
proceed to sentence against that knowledge, which he by
Divine dispensation hath received.

12. (3.) If a king, or senate, or any supreme power,
receive testimony of a matter of fact concerning any of their
council, whom they know to be innocent; as if it be legally
proved that Sempronius robbed a man, upon the kalends of
March, a hundred miles from the place where the king or
senate saw him sitting all that day ; that they may not
deliver him to death appears therefore, because they, being
accountable to none but God, must judge by his measures,
that is, so as to preserve the innocent, and not by those
measures which men's necessity, and imperfection, and
weaknesses, have made regularly necessary. But that which
is regularly necessary, may irregularly and by accident in
some cases be unjust, and in those the supreme power must
make some provisions where it can, and it can when it knows
the truth of the particular. For since the legislative power
can dispense in the administration of its own laws upon par-
ticular necessities, or charity upon the affirmation and peti-
tion of him that needs it ; much more must it dispense with
the forms of proceedings in a case of such necessity, and
justice, and charity, and that upon their own knowledges.
The affirmation of the argument is, that princes and senates
may, and must, do this ; that it is necessary, and therefore
also just in them to do so. The consequent of the argument
is this : That therefore if private judges may not do so, it is
because they have no authority to do so, but are compelled
by their princes to proceed by forms: and, if this be all, it
declares the necessity of such proceedings to be only upon
man's authority ; and so, though by law he may be bound
to do so, yet our inquiry being what he is tied to do in

Online LibraryJeremy TaylorThe whole works of the Right Rev. Jeremy Taylor (Volume 11) → online text (page 47 of 50)