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conscience, the law cannot prevail above conscience, the
subordinate above the superior, there being, in this case, a
knowledge of the fact, and the law of God for the right.

13. (4.) For the case is this: God says, "Thou shalt
not slay the innocent," and the judge does certainly know,
that the accused man is truly innocent: the conclusion is,


Therefore this man must not die. Against this, the argument
opposed is this : Human authority says, Thou shalt slay
him that is convicted of a fault, whether by true or false wit-
nesses: here are witnesses which do convict him, and I know
them to be false: the conclusion is, Therefore this man must
die. Which of these two arguments ought to prevail, I think
needs not much inquiry.

14. (5.) And what if Titius be accused for killing Regu-
lus, whom the consul at that time hath living in his house,
or hath lately sent abroad ; would not all the world hoot at
him, if he should deliver Titius to the tormentors, for killing
the man whom the judge knows to be at home, it may be
dressing his dinner, or abroad gathering his rents ? But if
this be so absurd (as it is indeed extremely), it follows, that
he may use his private knowledge against a false testimony
that is public. Or how if he sees the fact done before him
in the court ? a purse cut, or a stone thrown at his brother
judge, as it happened at Ludlow not many years since? The
judge proceeded to sentence upon intuition of the fact, and
stayed not for the solemnities of law. Or put case that there
be depositions offered on both sides, for and against the inno-
cent, either directly or indirectly. If in this case the judge's
private knowledge may determine for either, it follows that
his private knowledge can be admitted as the instrument of
justice ; and if it may, it must : for nothing can hinder him
to do it, but because he may not. But that he may, appears
in the now alleged instances.

15. (6.) Adrianus puts another case, in which it is also
without contradiction evident that private notice is to be
preferred before public solemnity, where there is an error in
this and none in that. The case I choose to express in this
narrative. Viretta, a naughty woman, pretends to be wife
to Coloro, an Italian gentleman, and brings a priest and
witnesses whom she had suborned, to prove the marriage.
The judge gives sentence for Viretta, and commands Coloro
to pay the duties of a husband to her, and to use her as a
wife. He knows the contrary, and that he is husband to
Vittoria Morisini, and therefore pays her all his duty, and
neglects the other ; and he is bound to it, because no man's
error or malice can alter the laws of God, and from paying
that duty which he knows is due by the laws of God, he
cannot be excused by any formal error arising in the


administration of the laws of man. The same is the judge's
case. For if the law commands him to do an act against a
known private duty, he is so to follow the duty he knows he
owes to God, in preserving the innocent, as Coloro is bound
to preserve his duty to his wife, and the judge may no more
commit murder than Coloro may commit adultery ; but nei-
ther of them can be rescued but by their private conscience,
therefore they may use that. And there is no escape in this
instance, because the subject is as much bound to submit to
the sentence of the law, as the judge is to the forms of it;
and that which secures one, secures both.

16. (7.) The evils that may be consequent to the strict
adherence to the forms and proofs of law against the judge's
conscience, may be so great as to be intolerable, and much
greater than can be supposed to be consequent to the follow-
ing a certain unsolemn truth. And there is no man, but put
the case so as himself and his party may be involved in ruin
by false witness, and he will grant that himself is by all means
to be preserved. Put case a whole order of the clergy, of
monks, of lawyers, should be accused falsely and oppressed
by evil men, as the Knights Templars were accused fiercely,
and so were the religious in Henry VIII. 's time : if the
king had known that the monks, and the pope had known
that the Templars had been innocent, no man ought to have
persuaded them to condemn the guiltless. For if the king
had proceeded against them to confiscation, making use of
his advantage gotten by the sin of vile men, the effect had
been, that he would rather have gotten money by a lie, than
have done justice to the oppressed according to his con-
science. And indeed, because it is not to be supposed but
all the world would have given sentence for themselves in
their own case, it is to be supposed that the contrary opinion
is but the sentence of men in prosperity, or of inexperienced
scholars, who care not what load they put upon others to
verify their own opinion. And what Christian will not con-
demn Pilate for condemning the holy Jesus, according to
the testimonies of his false accusers, and against his own
conscience ? And let the case be put, that the witnesses had
agreed, and proved foul things against the unspotted Lamb
of God, and made all clear in forms of law, and that Pilate
had known the Lord to be innocent and injured, could the


water in the basin have washed him clean, if he had, against
his conscience, in compliance with the solemn perjurers, have
condemned him who was purer than the angels? In this
case the effect had been intolerable, for which no pretence of
necessity, or legal formalities, could have made recompense.

17. (8.) A law founded upon presumption binds not in
the court of conscience, when the presumption is found to
be an error. The law presumes that the heir entering upon
an estate, if he makes not an inventory, does it to conceal
the goods, and defraud the creditors. But if an heir does so

O *

by negligence, or ignorance, or an impertinent fear, or upon
ill counsel, or be betrayed to do so; if the creditor knows
that the goods are not sufficient, he may not in conscience
take the advantage the law gives him, but is bound to do
charity and justice by the measures of his private knowledge,
and not by the measures of the law to do violence and
oppression, which was the thing in question.

18. (9.) To the verification of the sentence of death upon
an accused person there are required, 1. A reality of the
crime. 2. A power in the judge. 3. And equity in the law.
Now if divers men should swear that the judge hath a com-
petent power, nay, though they threaten him with death if
he does not, yet he may not exercise any such power, which
himself privately knows that he hath not. So also, if he
knows the fact does not deserve death, though men swear
it, or a higher power declare it, or another competent judge
affirm it, yet a judge must not consent to it, if himself knows
it to be unjust. And I have read of an excellent prince, who
because he did consent to the forms and processes of law
made by his senate against the bravest of his subjects, against
his own conscience and knowledge, repented of it all the
days of his life, and was not pardoned for it till the day of his
death ; and the first confidence he had of pardon, was upon
St. Paul's words, " He that is dead, is justified from sins."
But then, since the defect of either of these two makes it
unlawful for a judge to proceed according to the forms of law,
and ties him to follow his conscience even against allegation
and proof, much more must it be so, if there be no reality of
fact in the accused party ; because, in the destitution of this,
the laws themselves have no power, and therefore they can
give none to a judge their minister. " Justis lex non est


posita, The law was not made for the innocent," but to
defend them, and therefore hath no power to destroy them ;
and then the judge can have none, and so cannot in that case
be tied to proceed according to formalities, and therefore
must proceed according to bis conscience, or not at all. For,

19. (10.) If a law were made that a judge should be bound
to condemn an innocent person, though he knows him to be
so, and to be accused by calumny, and supplanted by perjury,
it were an unjust law, as all men (that I know of) grant, and
indeed must grant. For it were a law made to encourage
perjurers and oppressors, to discourage innocence : a law
made against the intention of laws, which is, to defend the
right, and punish the wrong-doer : it were a law disabling
the judge to rescue the oppressed, and a law expressly
disowning the cause of the afflicted : and if any judge should
undertake his office upon such terms, he should openly
profess, that if the case happened, he would do against his
conscience. And all laws going the best way they can to find
out truth, would never disable a judge to make use of it when
he had found it out, and assisted the inquiry of the laws by
a fortunate discovery. For the examining of witnesses
being but a means to find out truth, cannot possibly be so
adhered to, as to be preferred before the end to which it is
designed ; that were as if a man should rather love to seek
than find. Since, therefore, no lawyer ever was, or can be, so
unreasonable as to decree that a judge shall not, in such a
case, directly relieve the innocent, but proceed to his con-
demnation, it follows that he can have no obligation to do
so, and then the obligation of his conscience can upon no
pretence be declined. The law does not intend to oblige the
judge in that case, because no law can be made expressly to
do so ; he, therefore, being free from the law in that case,
stands bound to his private conscience, without excuse.
Nay, the canon law expressly enjoins that a judge should
give sentence according to his own conscience, as appears
in " c. 1, de Re Judic. in 6 ; et in Clem. 1, sect. Verum de

20. (11.) Suppose a judge should suborn false witnesses
against an innocent ; either he is bound not to proceed
according to allegation and proof, but according to his secret
conscience, or else he is bound to go on in his crime, and


effect that which he had maliciously designed. For it is not
enough that he is bound to disengage the witnesses and take
off the subornation : for suppose the persons already appear-
ing will not cease, lest they should be shamed and ruined,
but will take confidence from their crime, and perseverance
from their publication, then there is no remedy for the inno-
cent, neither can the judge rescue him from himself, nor
give over sinning, unless he proceed by his private certain
measures, and not by those which are false and public. For
to say he may be sorry for his fault, and yet proceed in it, is
to make him a hypocrite : if he confesses that he suborned
the witnesses, and yet proceed to condemn the innocent, he
is ridiculous, and makes the law put on the face of tyranny
and unreasonable violence and oppression. So that either
he must go on and sin to the end without remedy, or he
must be admitted to proceed by his private conscience, and
that in his case would be justice and penitence besides.

21. (12.) Lastly, all laws being intended for the good
of the subjects, are bound not only to comply with their
ordinary cases by ordinary provisions, but for their accidental
needs by the extraordinary. And so we find it, that all laws
yield in particulars, when the law is injurious in the special
cases : and this is the ground of all chancery, because
" summum jus, summa injuria ;" and Solomon advised well,
"Noli esse Justus nimium, Be not over righteous;" and
the justice of God being svisixua, gentleness and favour,
equity and mercy, ours is best when we follow the best
precedent : now since no case is more favourable than the
present, the laws are unjust that will not bend and stoop
to the miseries of the oppressed ; and therefore the judge
having no hinderance, he is tied by a double band to relieve
the oppressed innocent, by his direct sentence (where it can
be admitted), or by his open declaration, and " quantum in
se est," but at no hand to consent to his condemnation.

22. I conclude, therefore, with that rule of the canon h
law, " Melius est scandalum nasci quam ut veritas desera-
tur ; It is better that a scandal should be suffered, and an
offence done to the forms and methods of judicial proceed-
ings, than that truth should be betrayed and forsaken;"
and what was said in the prophecy concerning our blessed

h Cap. penult, de Reg. Jur.


Saviour, " Non secundum auditum aurium arguet, He shall
not reprove according as he hears," but according as he
knows, is also true of judges in this case : they do judge
most perfectly, when, in truth and in defence of the innocent,
they follow the pattern of the Divine judgment, and not the
imperfection of the human, that is, they are to judge by the
eyes, not by the ears ;

Segnius irritant animos demissa per aures,
Quam quae sunt oculis subjecta fidelibus.

That is a sure sentence that can rely upon ocular demonstra-
tion ; for our eyes are a better guard of innocence than the
tongues of sycophants, and our consciences are surer inform-
ers than the forms of law ; and since no law hath declared
against it, the conscience is at perfect liberty ; and yet if it
were not, we are certain it is better to obey God than men ;
the conscience is no man's servant, it is God's only. Con-
science is God's angel : " Grieve not the angel, lest he smite
thee ; do nothing against him, lest he forsake thee." " Viro
bono fixum in omni vita est, traversum ungueni a recta con-
scientia non discedere," said Cicero ;' " Every good man is
perfectly resolved not to depart from his right conscience a
hair's breadth during his whole life."

23. And now to the pretences which are made on the
other side, there will be the less need of a reply, if we
consider that they only prove that a judge is tied to observe
the forms of judicial process, and to proceed according to
allegation and proof, ordinarily and regularly, as supposing
that this is the best ordinary way of information, as it is most
certainly. But as the law, using the best she hath, would
not yet refuse a prophet from heaven, or a miracle to bring
truth from her retirements, or her veil, so neither will she
refuse any better way that can be offered ; but whatever the
law would do, yet the question now being concerning the
judge, it is certain that the judge in the case now put, hath
a surer way of evidence : and therefore as the law, if she had
a surer way of evidence, ought not to go against so clear a
light, so neither can the judge. And the arguments, only
proceeding upon the usual suppositions, conclude that regu-
larly judges must do as usually they can do, that is, proceed
according to proof, because they can have no better way,

1 Ad Atticum, xiii. 20.


but they cannot be drawn to this extraregular and rare
contingency. For though most men are brought in upon
suspicion or private accusation, yet the apostle says that
'some men's sins are manifest, going before unto judgment:'
and when this happens, the judge must not go in inquest
after what he sees. And the same arguments may as well
be urged against all dispensations and remissions, against
favour and chancery, and destroy all equity, and all religion,
as to destroy all conscience when it is certain and infallible.
But I shall say something to the particulars.

24. (1.) It is true that a judge hath a double capacity,
and he hath offices proportionable; some as a man, some as
a judge; that is, he hath some natural and essential obliga-
tions, some which are superinduced upon his office. And
therefore, I refuse to use this distinction as it is commonly
used, and so made more subject to mistake and abuse. In
this case the judge is not to be considered as a public man
and a private man; for private is as much superinduced as
public, and his other relations are as much to yield to his
essential duty, as that of a judge: such as are the relation of
a husband, of a father, of a tutor, of a master; and, amongst
these, the more private is often tied to yield to the more pub-
lic. But therefore in this case the judge is to be considered
as a judge and as a man ; and in this case the duties are
sometimes disparate, but never contrary; and when there
is a dispute, the superinduced must yield to that which is
original ; for whatsoever is his duty as a man, the judge may
not prevaricate; for it is the man that is the judge, in the
man that office is subjected, and the office of a judge is
bound upon him by the conscience of the man. If the judge
had two consciences, and two real persons, then it were to
be granted that they were to be served and attended to in
their several callings ; but it is not so : they are but two per-
sons in fiction of law, but materially, and to all real events,
the same: it is the same conscience ministering to divers
duties : and therefore as the judge is always that man, so his
conscience is the conscience of that man ; and because as a
man he must not go against his conscience, so when that
man is a judge, he must not go against the man's conscience,
for the judge is still that man ruled by that conscience. The
essential duty of a man cannot by any superinduced formality


be dispensed with. Now to go according to our conscience
and knowledge is the essential rule and duty of a man,
which he cannot put off by being a judge. The new office
superinduces new obligations, but none contrary, no more
than he can cease being a man by being a judge. " Certe
prior aniina quam litera, et prior sermo quarn liber, et prior
sensus quam stylus, et prior homo quam philosophus et
poeta." k He is first a man, and then a philosopher, a poet,
or a judge; and that which is first, cannot be prejudiced by
what is superinduced. And if the judge go against the con-
science of the man, pretending to do according to the con-
science of the judge, the man shall be damned, and where
the judge shall then appear, any child can tell. If the Bishop
of Bayeux, as earl of Kent, will rebel against his prince, the
Earl of Kent shall lose his head, though the Bishop of Bay-
eux may plead his clergy. For in this there is a great mis-
take. To be a man and to be a judge, are not to be compared
as two distinct capacities of equal consideration. To be a
bishop and to be a judge are properly such, and have distinct
measures; but to be a man is the subject of the two capacities,
and cannot be laid aside as either of the other may ; and
therefore the distinction is vain and sophistical: and if it
could be admitted in metaphysics (in which yet it appears
to have an error), yet it can never be suffered to pass to real
events. This being the ground of all the contrary opinion,
and being found false, the superstructure must also fall to
the ground. To the special cases this I answer:

25. (2.) An executioner may not refuse to do his office,
though the judge hath given an unjust sentence: it is true only
when the matter is dubious, or not known, or intolerable.
But if the judge commands the hangman to flay a prophet
alive, or to crucify Christ, or to strike his king through with
a sword, I doubt not but the adversaries themselves will think
he is not obliged to obey. Indeed, this ought not easily to
be drawn into a rule, lest such people turn it into a pretence.
But if the executioner be sure, and the matter be notorious,
and such as cannot deceive him, his hand ought not to be
upon an innocent. For as receivers are to thieves, so are
executioners to unjust judges. When the fact is notorious,
and the injustice evident, then it is such as all men can see

k Tertul. lib. de Testim. Animae.


it: and then, as, if there were no receivers, there would be no
thieves; so if there were no executioners of unjust sentences,
the judge would be apt to reverse his sentence.

26. (3.) Now w T hereas it is pretended that if a private
notice were admitted against public evidence, it were like a
private spirit against a public article, and would open a way
to every pretension, it would dissolve the forms of judica-
tures, and introduce many evils: I answer, that if all this were
true, and that for this there could be no remedy, nor yet
any recompense in the special cases, it would follow that the
law were prudent, if it did refuse to admit such a proceeding,
unless she had some reason to trust the judge : but this
were nothing to the judge. For the law therefore refuses
his testimony, because she hath that which she presumes is
better, and because she, not knowing the secret, follows the
best way she hath. But the judge knows the secret, and
he is not deceived, and he does not make pretences, for
the case supposes him to speak according to his conscience;
and therefore, although the law in prudence does not be-
lieve him, yet he cannot but believe himself, and therefore
in duty to God must proceed accordingly, or must not pro-
ceed at all.

27. (4.) Neither is this like a private spirit against a
public article; because this conscience of the judge does not
impose upon the public, who hath power to admit or to refuse
his sentence; but it is only for himself: and although his
conscience ought not to be the public measure, yet it ought
to be his own. I do not doubt but the law may go against
the judge's conscience, but the judge himself may not go
against his own.

28. (5.) And this we see verified in a matter of a private
evidence; for though the judge hath seen it in a chamber,
yet he must not judge by it in the court, the law will not
suffer him to do so; but yet for himself he may so far make
use of it, as to be persuaded in his conscience, and to under-
stand on which side the rijjht stands, and to favour it in all

O *

the ways that are permitted him. But the case here being
not matter of life and death, the law hath power to dispose
of estates, and the conscience of the judge is not obliged to
take more care of a man's money or land than himself does,
but it can be obliged to take care of men's lives, when the


injured person is not able. A man may give away his estate,
but he may not give his life away; and therefore he may lose
his estate by such ways, by which he ought not to be permitted
to lose his life. Add to this, that a judge having seen an
instrument in private which could much clear the cause
depending, may not upon that account proceed to sentence,
because, it may be, the adverse party can give an answer to
it, and make it invalid: whereas in matters of fact, of which
the judge is conscious, there is no uncertainty nor fallibility.
And, lastly, the suffering party, in the question of money or
lands, suffers no inconvenience, but what is outweighed to
the public by the order of justice and solemnities of law ;
and the man that loses to-day for want of producing his
evidence, may produce it to-morrow and recover it. But in
matter of life and death, nothing can make recompense to
the oppressed innocent; and if he suffers to-day, he cannot
plead an error in the indictment to-morrow. For these and
many other considerations the case is wholly different.

29. (6.) By some of these things we may also answer to
the instance of a confident and opinionative judge. He may
not prefer his private opinion before the sentence of the law,
and bring it into open judgment. 1 . Because he himself may
be deceived in his opinion, and his confidence is no argument
that he is not deceived. '2. Because if the sentence and de-
cree of the law be less reasonable, yet the judge without sin
may proceed to it, because the more reasonable is not in his
choice, and the less reasonable is not absolutely and simply
unjust. 3. In matters of prudence and civil government
there is no demonstration of reason, but the legislative power
may determine for the public interest as is presently appre-
hended, and may refuse the better counsel, and yet do well
enough; for that which is simply the better, is not in these
cases necessary; and in such things a man's reason ought
not to be so confident, as he is of what he sees, or what is
matter of faith ; and therefore in these only he is to be
guided by his own, in the other he must proceed by the public
measures. And as in all things, not demonstratively certain
or evident, the executioner is bound to obey the judge ; so
is the judge bound to obey the law; and the presumption
will lie for the law against the judge, as it will lie for the
judge against the officer. 4. And yet, after all, I do not

Online LibraryJeremy TaylorThe whole works of the Right Rev. Jeremy Taylor (Volume 11) → online text (page 48 of 50)