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an arrow into his own country, though he bend his bow
abroad, at home he shall find the string.

5. (4.) If the action be something to be done at home,
the subject abroad is bound to obey the summons of the
law. When Henry II. of England commanded all pre-
lates and curates to reside upon their diocesses and charges,
Thomas Becket, of Canterbury, was bound in conscience,
though he was in France, to repair to his province at home.
The sum of all is this : A law does not oblige beyond the pro-
per territory, unless it relate to the good or evil of it. For
then it is done at home to all real events of nature, and to
all intents and purposes of law. For if the law be affirma-
tive, commanding something to be done at home, at home
this omission is a sin : " Qui non facit quod facere debet,
videtur facere adversus ea quae non facit," saith the law :
The omission is a sin there where the action ought to have
been done. But if the law be negative, " qui facit quod fa-
cere non debet, non videtur facere id quod facere jussus est."
He that does what he is forbidden to do, is answerable to
him who hath power to command him to do it. c

6. This rule thus explicated is firm ; and is to be extended
to exempt or privileged places, according to that saying of
the lawyers, "Locus exemptus habetur pro extraneo; He
that lives in an exempt place, lives abroad."

7. By the proportions of this rule it is easy to answer
concerning strangers, whether they be bound by the laws of
the nation where they pass or traffic. For in all things,
where they are not obliged by their own prince, they are by
the stranger, and that upon the same account ; for if they
who are abroad, are not ordinarily bound by the laws of
their country (except in the cases limited), it is because the
jurisdiction and dominion of their prince go not beyond his

c Lib. Qui non facit. ff. do Regulis Juris.



304 OF HUMAN LAWS IN GENERAL,

own land ; and in such cases the place is more than the per-
son : but, therefore, it must go so far, and be the person
what he will, yet, in the territory, he is under the law of that
prince. He is made so by that place. It is "lex terrae,
the law of the land," in which he is : and " in the peace
of that he shall have peace," as God said to the Jews con-
cerning the land of their captivity.



RULE IX.

Obedience to Laws is to be paid according to what is com.'
manded, not according to what is best.

1. WHEN a Laconian was fighting prosperously, and had
prevailed very far upon his enemies, it happened that a retreat
was sounded, just as he was lifting up his hand to smite a
considerable person ; he turned his blow aside and went
away, giving this reason to him that asked him why, " It is
better to obey than to kill an enemy." But when Crassus,
the Roman general, sent to Athens, to an engineer, a command
to send him such a piece of timber towards the making of a
battery, he sent him one which he supposed was better ; but
his general caused him to be scourged for his diligence : and
Torquatus Manlius, being consul, commanded his son not to
fight that day with the enemy ; but he, espying a great
advantage, fought and beat him, and won a glorious victory,
for which he was crowned with a triumphant laurel, but for
his disobedience lost his head. It is not good to be wiser
than the laws ; and sometimes we understand not the secret
reason of the prince's command, or the obedience maybe
better than a good turn, or a better counsel ; which is very
often ill taken, unless it be required. " Corrumpi atquedis-
solvi officium omne imperantis ratus, si quis ad id, quod
facere jussus est, non obsequio debito, sed consilio non
desiderate, respondeat," said Crassus in A. Gellius.*

2. Thus also it is in the observation of the Divine com-
mandments: when God hath declared his will, and limited
our duty to circumstances and particulars, he will not be an-
swered by doing that which, we suppose, is better. We must
Vide A. Gellium, lib. i.e. 13. Oiselii,p. 67.



AND THEIR OBLIGATION. 305

not be running after sermons, when we should be labouring
to provide meat for our family : for besides that it is direct
disobedience in the case now put, there is also an error in the
whole affair ; for that which we think is better than- the com-
mandment, is not better : and this God declared in the case
of Saul, " Obedience is better than sacrifice;" No work is
better than that which God appoints.

3. This is to be understood so that it is not only left to
our liberty, but it is also rewardable, for the subject to pre-
vent a commandment, and to excel the measures of the law
in the matter of a commandment, when to do so we know
will be accepted, and is to the pleasure and use of the prince.
Thus Astyages p preferred Chrysantas before Hystaspes, be-
cause he did not only obey as Hystaspes did, but understood
the mind of the prince, and when he knew what would please
him, did it of his own accord. But then this is upon the
same account ; it is obedience, only it is early and it is
forward.

4. This also is to be added, that if the choice of the sub-
ject, differing from the command of the prince, be very pro-
sperous and of great benefit, the prince does commonly ' ex
post facto,' allow the deed ; that is, he does not punish it.
P. Crassus Mutius and T. Manlius did otherwise ; but they
were severe and great examples. But when it is not punished
it is not because it does not deserve it, but because it is
pardoned : for if it should miscarry, it would not escape
vengeance : and therefore though the prosperous event be
loved, yet it came in at a wrong door, and the disobedience
was criminal. ASG-OTOU p'tv 'ian povov TO ixiTamiv' BovXuv TO
vreidiada.!, "Masters are to command, but the province of
servants is to obey ; " saith St. Chrysostom.

5. This rule is to be understood according to the inten-
tion, not according to the letter, of the law ; for if the inten-
tion of it be that which is better, it is evident that is to be
done which is better in the intention, not that which is
commanded in the letter. But of this in the chapter of
Interpretation of Laws.

PTho passage to which Bishop Taylor alludes runs thus : Xoufdtrie; reivvv, t<fti,
eurtri f^artt pit ev x.\r,fii ia<vsv, aXXix Tfl)v x,a,\tiffHin <nzgr,r Tut rtfitrioui iviKOf
ifiira Si el TO Ki'/.-yopnvci [iovav, aX/.a */ o, n auro; ytoin uftwov livai trtrgayftiift
fipii, rtvrt t^arrtt. Cyrop. viii. c. 4, 11. (J. R. P.)

VOL. XIII. X



306 OF LAWS PENAL

CHAPTER II.

OF LAWS PENAL AND TRIBUTARY.

RULE I.

It is lawful for Christian Magistrates to make Penal Laws t
not only pecuniary and of Restraint, but of Loss of Member
and Life itself.

1. WHATSOEVER is necessary, is just; that is, that must be
done which cannot be avoided : and therefore the power of
the magistrate in punishing the transgressors of their laws of
peace, and order, and interest, is infinitely just ; a for, with-
out a coercitive power, there can be no government, and
without government there can be no communities of men ; a
herd of wolves is quieter and more at one than so many men,
unless they all had one reason in them, or have one power
over them. " Ancus Rex primus carcerem in Romano foro
aedificavit, ad terrorem increscentis audaciae," says Livy : b
" King Ancus seeing impiety grow bold, did erect a prison
in the public market." When iniquity was like to grow great,
then that was grown necessary. And it is observed that
the Macedonians call death Advo;, from the Hebrew word
Dan, which signifies a judge, as intimating that judges are
appointed to give sentences upon criminals in life and death.
And therefore God takes upon himself the title of a king and
a judge, of a lord and governor ; and gives to kings and
judges the title of gods, and to bishops and priests the style
of angels.

2. But here I will suppose, that magistracy is an ordi-
nance of God, having so many plain scriptures for it: and
it being by St. Paul d affirmed, that " he beareth not the

Nee quisquam sibi putat turpe, quod alii fuit fructuosum. Patercul. lib. ii.
c. 3, 4. Krause, p. 72.

b The original words of Livy are, " Ingenti incremento rebus auctis, quum
in tanta multitudine hominum discrimine recte an perperam facti confuso, facinora
clandestina fierent, career ad terrorem increscentis audaciae, media urbe, imminens
foro sedificatur." Lib. i. c. 33, 8. (J. R. P.)

c 1 Tim. vi. 15. Psalm Ixxxii. 6. d Rom. xiii.



AND TRIBUTARY. 307

sword in vain," and that they who have done evil, ought to
fear ; and of himself he professed that if he " had done aught
worthy of death, he did not refuse to die ; " and a caution
given by St. Peter, that Christians should take care that
" they do not suffer as malefactors ;" and it being made a note
of heretics, that they are ' traitors,' tKat they are ' murmurers,'
that 'they despise dominion,' that 'they speak evil of dig-
nities ;' and that we are commanded to " pray for kings and
all that are in authority," for this reason, because they are
the appointed means that men should ' live a peaceable and
godly life ; ' for piety, and peace, and plenty too, depend upon
good governments: and therefore Apollo Pythius told the La-
cedemonian ambassadors, that, if they would not call home
Plistonax their king from banishment, and restore him to
his right, they should be forced to till their ground with a
silver plough ; e that is, they should have scarcity of corn in
their own cities, and be forced to buy their grain to relieve
the famine of their country : for so the event did expound the
oracle; they grew poor and starved, because they unjustly
suffered their king to live in exile. Add to these, that we
are often commanded to " obey them that have the rule over
us; to be subject to every ordinance of man ; that rulers
are not a terror to good works, but to the evil ; " and many
more to equal purposes.

3. Neither ought the precept of charity and forgiveness,
which Christ so often, so earnestly, so severely presses, eva-
cuate the power of princes. For the precept of forgiving
offenders does not hinder parents from correcting their
offending children ; nor masters from chastising their rebel-
lious servants ; nor the Church from excommunicating them
that walk disorderly ; these things rely upon plain scriptures,
and upon necessity, and experience ; and they do evince thus
much without any further dispute, that some punishment
may stand with the precept of forgiveness ; or at least, if he
who is injured may not punish without breach of charity,
yet some one else may. And if it be permitted to the power
of man to punish a criminal without breach of charity, the
power of the magistrate must be without all question ; and
that such a power can consist with charity, there is no doubt,
when we remember that the apostles themselves and the

e 'Agyt/jia il\a.x.a. ivXa^tit, Thucyd. V. 16. Beck, vol. i. p. 712.



308 OF LAWS PENAL

primitive churches, did deliver great criminals over " to the
power of Satan, to be buffeted, even to the destruction of the
flesh, that their souls might be saved in the day of the Lord."
St. Paul delivered Elymas to blindness, and St. Peter gave
Ananias and Sapphira to a corporal death.

4. But the great case of conscience is this : Although all
punishments less than death may, like paternal corrections,
consist with charity (for they may be disciplines and emend-
ations), yet in death there is no amendment ; and therefore
to put a man to death * flagrante crimine,' before he hath
mortified his sin, or made amends for it ; that is, before it is
pardoned, and consequently to send him to hell, is the
most against charity in the world, and therefore no man hath
power to do it ; for God never gave to any man a power to
dispense justice to the breach of charity ; and that dispensa-
tion which sends a man to hell, is not for edification, but for
destruction.

5. To this I answer, (1.) That it is true that whatsoever is
against charity, is not the effect of justice ; for both of them
are but imitations and transcripts of the Divine attributes and
perfections, which cannot be contrary to each other. But
when the faujts and disorders of mankind have entangled
their own and the public affairs, they may make that neces-
sary to them, which, in the first order and intention of things,
was not to be endured. Thus we cut off a leg and an arm to
save the whole body ; and the public magistrate, who is
appointed to defend every man's rights, must pull an honest
man's house to the ground, to save a town or a street : and
peace is so dear, so good, that, for the confirming and perpe-
tuity of it, he may commence a war which were otherwise
intolerable. If therefore any evil comes by such ministries
of justice, they who introduced the necessity must thank
themselves. For it is necessary it should be so : though it
be but a suppositive and introduced necessity ; only he that
introduced it is the cause of the evil, not he that is to give
the best remedy that he hath.

6. (2.) No man is to answer for an accidental effect that is
consequent to his duty : " In omni dispositione attenditur
quod principaliter agitur," says the law; t " " I am to look to
what is principally designed, not what accidentally can

f Lib. Si quia nee causam, ff. si certum petatur.



AND TRIBUTARY. 309

happen." If I obey God, it is no matter who is offended. If
I see that ray neighbour will envy me fordoing good, and his
eye will be evil because I am good, I am not to omit the
good, for fear his soul should perish, when my good is rather
apt to do him good than evil : he is to answer for it, not I ;
for nothing that I do, makes him evil ; he makes himself so
by his own choice. There are many men that turn the grace
of God into wantonness, and abuse the long-suffering and
patience of God, and turn that into occasions of sin, which
God meant for the opportunities and endearments of repent-
ance ; but if God should leave to be gracious to mankind in
the same method, out of charity and compliance with the
interests of the souls of such miserable persons, as they
would be never the better, so the other parts of mankind
would be infinitely the worse.

7. (3.) It is true that charity is the duty of every Christ-
ian ; but as all Christians are not to express it in the same
manner, so there are some expressions of charity which may
become some persons, and yet be the breach of another's
duty : and some may become our wishes, which can never be
reduced to act ; and because that is all we can do, it is all
we are obliged to do. When Vertagus was condemned to
die for killing the brother of Aruntius Priscus, the poor
father of the condemned man came and begged for the life
of his miserable son ; but Priscus, out of the love of his mur-
dered brother, begged with the same importunity that he
might not escape ; and both their effects were the effects of
charity. The charity of a prelate and a minister of religion
is another thing than the charity of a prince. A mother sig-
nifies her love one way, and a father another ; she, by fond-
ness and tender usages, he, by severe counsels and wise
education ; and when the minister of religion takes care con-
cerning the soul of the poor condemned man, the prince
takes care that he shall do no more mischief, and increase
his sad account with God. The prince and the prelate are,
both of them, curates of souls and ministers of godliness ;
but the prince ministers by punishing the evil-doer, and re-
warding the virtuous ; and the prelate by exhortation and
doctrine, by reproof and by prayer, by sacraments and dis-
cipline, by the key of power and the key of knowledge.
The effect of this consideration is this ; that the magistrate,



310 OF LAWS PENAL

by doing justice in the present case, does not do against
charity : because he does minister to charity in the capacity
and proper obligation of a magistrate, when he does his own
work, which being ordained for good and not for evil, the
office is then most charitable and most proper for him, when
he ministers to charity in his own way that God hath
appointed him. By his justice he ministers to the public
good, and that is his office of charity. That is his work;
let others look to their share.

8. (4.) The cutting off a malefactor is some charity to
his person, though a sad one ; for besides that it prevents
many evils, and forces him to a speedy recollection, and a
summary repentance, and intense acts of virtue by doubling
his necessity ; it does also cause him to make amends to
the law ; and that oftentimes stands him in great stead
before the tribunal of God's justice, " paulum supplicii satis
est Patri ;" God is sometimes pleased to accept of a small
punishment for a great offence ; and his anger many times
goes not beyond a temporal death, and the cutting off some
years of his life.

9. (5.) That which concerns the magistrate is, that he
be just and charitable too. Justice of itself is never against
charity ; but some actions of supposed charity may be
against justice. Therefore the magistrate in that capacity is
tied to no charity but the charity of justice, the mercies of
the law ; that is, that he abate of the rigour as much as he
can, that he make provisions for the soul of the criminal,
such as are fit for his need, that if he can delay, he do not
precipitate executions. In what is more, the supreme, the
lawgiver is to take care, and to give as much leave to the
ministers of justice as can consist with the public interest.
For here it is that there is use of that proposition, that all
men are not tied to all the exterior kinds and expressions of
charity, but as they are determined accidentally. It will not
be supposed that the judge is uncharitable if he do not
preach to the condemned criminal ; or if he do not give him
money after sentence, or visit him in prison, or go to pray
with him at the block ; these are not the portions of his
duty : but as his justice requires him to condemn him, so
his charity exacts of him as judge nothing but the mercies of
the law.



AND TRIBUTARY. 311

10. (6.) That which is necessary to be done, is not against
any man's duty, or any precept of Christianity. Now that
some sorts of persons should be put to death is so necessary,
that if it were not done it would be certainly, directly, and
immediately, very great uncharitableness ; and the magistrate
should even in this instance be more charitable than he can
be supposed to be in putting the criminal to death. For a
highway thief and murderer, if he be permitted, does cut off
many persons who little think of death ; and such as are
innocent as to the commonwealth, are yet very guilty before
God : for whose souls and the space of whose repentance
there is but very ill provision made, if they may live who
shall send many souls to hell, by murdering such persons
who did not watch and stand in readiness against the sad
day of their sudden arrest. If all such persons were to be
free from afflictive punishments, the commonwealth would
be no society of peace, but a direct state of war, a state most
contrary to governments ; but if there were any other less
than death, the galleys, and the mines, and the prisons, would
be nothing but nurseries of villains, which by their numbers
would grow as dangerous as a herd of wolves and lions : and
if ever they should break into a war, like Spartacus and his
rabble, who knows how many souls should be sent to hell
for want of time to finish their repentance ?

11. (7.) If the condemned criminal had never anytime to
repent, if he had never thrown away any opportunities of sal-
vation, he had never come to that pass ; and if he have, who
is bound to give him as much as he will need ? And if it be
unlawful for a magistrate to put a criminal to death that hath
not sufficiently repented, then no villain shall ever die by the
public hand of justice : and the worse the man is, the longer
he shall live, and the better he shall escape : for in this case,
if he resolves privately that he never will repent, he hath
blunted the edge of the sword, and weakened the arm of
Justice for ever, that she shall never strike.

12. (8.) God hath given to magistrates a commission
which they must not prevaricate : if, therefore, a criminal
falls under the rods and axes of the consuls who are God's
ministers for good to them that do well, and for evil to them
that do evil, it is not the magistrate who is to be blamed,



312 OF LAWS PENAL

but the hand of God that is to be revered, who by this hand
cuts him off; and, it may be, therefore thus cuts him off,
because he will give him no longer time. However, the
magistrate is to look to his rule, not to rare and accidental
events, which are only in the power of the Divine Providence,
and not in the will of the man, to prevent.

13. (9.) No man can say that a condemned criminal,
that makes the best use of his time after sentence, or after
his just fears of it, or after the apprehension of the probabi-
lities of it, shall certainly be damned for want of more time.
For as no man knows just how much time is necessary, so
neither can he tell how deep the repentance of the man is,
nor yet how soon God will return to mercy. Therefore upon
so great uncertainties, and the presumption and confidences
relying upon such a secret, to omit a certain duty is no way
allowable. It is true there are, amongst some wise and pious
persons, great fears in this case ; but fear is very good, when
it is made use of to good purposes, to obstruct the course of
sin, but not the course of justice. And some men fear in
other cases very bad; which yet ought not to be made
use of to preserve the lives of murderers. Some fear that all
papists shall be damned, and some say that all protestants
are in as bad condition ; and yet he that thinks so, would
suppose the case too far extended, if it might not be consist-
ent with chanty to put (for example's sake) the gunpowder
traitors to death, till they had changed their religion. What-
soever we fear, we are to give our brethren warning of it,
while it is time for them to consider ; but these doubtful dis-
putes must not be used as artifices to evacuate the purposes
and defensatives of laws. And since the magistrates cannot
know what the sentence of God concerning such persons
shall be, they may hope well as readily as ill, and then there
is no pretence to arrest the sentence beyond the prudent and
charitable periods of the law.

14. (10.) No change in government, no alteration of laws,
no public sentences, are to be made or altered upon the ac-
count of any secret counsel of God ; but they are to proceed
to issue upon the account of rules, and measures of choice,
and upon that which is visible, or proved, that which is seen
and heard, that which God commands and public necessities



AND TRIBUTARY. 313

require ; for otherwise there can be no rule, no orderly pro-
ceedings, no use of wise discourses, but chance, and fear, and
irregular contingencies, must overrule all things.

15. (11.) The magistrate gives sentence against criminals
for single acts, not for vicious habits ; for concerning these
he hath nothing to do, and if the criminal perish for these,
it is only chargeable upon his own account. But if, by the
hand of justice, he dies for a single act, the shorter time,
that is usually allowed to those that are appointed to die, may
be so sufficient, that, if the criminal make full use of it, his
case is not so desperate, as that the objection can prevail :
for if there be nothing else to hinder him, it may be very
well ; but if there be any thing else, that he, and not the
magistrate, was first to have considered ; for himself knew of
it, the magistrate did not.

16. (12.) Every man that lives under government, knows
the conditions of it, those public laws, and the manners of
execution ; and that he who is surprised in his sin by the
magistrate, shall be cut off like him, who, by a sudden sick-
ness, falls into the hands of God. It is a sudden death g
which every man ought to have provided for; only in this
case it is more certain, and to be expected : and he that
knows this to be his condition, if he will despise the danger
when he. falls into it, cannot complain of the justice of the
law, but of his own folly, which neglected life, and chose
death and swift destruction.

17. Though from these considerations it appears, that the
pretence of charity cannot evacuate that justice which hath
given commission to all lawful magistrates, and warrant to all
capital sentences, and authority to all just wars, in which it is



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