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more than probable many will be killed that are not very well
prepared ; yet this power of inflicting capital punishments must
not be reduced to act in trifling instances, for the loss of a few
shillings, or for every disobedience to command ; it must not be
done, but in the great and unavoidable necessities of the com-
monwealth. For every magistrate is also a man ; and as he
must not neglect the care and provisions of that, so neither
the kindnesses and compassion of this. Nothing can make
recompense for the life of a man, but the life of a better, or
the lives of many, or a great good of the whole community.

8 See the Doctrine and Practice of Repentance, c. v. sect. 5, p. -'80.



314 OF LAWS PENAL

But when any of these is at stake, it is fit the innocent be
secured by the condemnation of the criminal. And this was
excellently disputed by Cicero h in his argument against Ca-
lenus upon this very question : " Hoc interest inter meam
sententiam, et tuam : ego nolo quemquam civem committere,
ut morte multandus sit : tu, etiamsi commiserit, conservan-
dum putas. In corpore si quid ejusmodi est, quod reliquo
corpori noceat, uri secarique patimur ; ut membrorum ali-
quod potius, quam totum corpus intereat : sic in reipublicse
corpore, ut totum salvum sit, quidquid est pestiferum, am-
putetur. Dura vox, multo ilia durior : Salvi sint improbi,
scelerati, impii : deleantur innocentes, honesti, boni, tota
respublica." Cicero would have no citizen deserve to die;
but Calenus would have none die though he did deserve it.
But Cicero thought it reason that " as in the body natural we
cut off an arm to save the whole ; so in the body politic we
do the same, that nothing remain alive that will make the other
die. It is a hard sentence, it is true, but this is a harder :
Let the wicked be safe ; and let the innocent, the good, the
just men, the whole commonwealth, be destroyed."

18. This we see is natural reason, but it is more than so ;
it is also a natural law, expressed and established by God 1
himself: " He that sheddeth man's blood," in man, or " by
man shall his blood be shed :" which words are further expli-
cated by the Chaldee paraphrast; " Qui effuderit sanguinem
hominis cum testibus, juxta sententiam judicum sanguis
ejus fundetur; He that sheds the blood of man with wit-
nesses, his blood shall be shed by the sentence of the judge."
For the majesty of the supreme prince or judge



-justi



Vim terroris habet, procul an prope, praesto vel absens :
Semper terribilis, semper metuenda, suoque
Plena yigore manet, nullique impune premenda
Creditur, et semper cuuctis, et ubique timetur ;

said Guntherus k with greater truth than elegance : " He hath
the force of a just terror in all places, at all times, and upon
all persons." And, in pursuance of this law, all communities
of men have comported themselves, as knowing themselves
but ministers of the Divine sentence ; and that which is the
voice of all the world, is the voice of nature, and the voice

h Philippic, viii. 5. Priestley's edition of Cicero, vol. iii. p. 1471.
' Gen. ix. 6. k Lib. iv.



AND TRIBUTARY. 315

of God. The sum of these things I give in the words of St.
Austin : " Non ipse occidit qui ministerium debet jubenti,
sicut adminiculurn gladius est utenti. Ideo nequaquam contra
hoc praecepturn fecerunt, quo dictum est, * Non occides,' qui
Deo auctore bella gesserunt, aut personam gerentes publicae
potestatis, secundum ejus leges, hoc est, justissimae rationis
imperium, sceleratos morte puniverunt." They who make
just wars, and those public persons, who, according to the
laws, put malefactors to death, do not break the command-
ment which says, ' Thou shalt not kill.' For as the sword
is not guilty of murder, which is the instrument of just exe-
cutions, so neither is the man that is the minister of the
judge, nor the judge who is the minister of God; QSO-J 8id-
jtovo; iKdixos sis (>P-/riv, " God's minister of revenge and
anger :" and by fear to restrain the malice of evil men, and
to prevent mischief to the good, is the purpose of authority
and the end of laws. So Isidore: 1 " Factae sunt leges, ut
earum metu humana coerceatur audacia, tutaque esset inter
improbos innocentia, et in ipsis improbis formidato supplicio
refraenaretur nocendi facultas." Fear is the beginning of
wisdom, and fear is the extinction and remedy of folly; and
therefore the laws take care by the greatest fear, the fear of
death, to prevent or suppress the greatest wickedness.



RULE II.

Penal Laws do sometimes oblige the guilty Person to the suffer-
ing the Punishment, even before the Sentence and Declara-
tion of the Judge.

1. THAT this is true concerning Divine laws is without per-
adventure, not only because the power of God is supreme,
mere, absolute, and eternal, and consequently can oblige to
what, and by what measure, and in what manner, and to
what purposes, he please ; but also because we see it actually
done in the laws and constitutions both Mosaical and evan-
gelical.

2. He that struck out an eye or tooth from a servant was

1 Lib. iv. Etymol. o. 81, et habetur, disk 4, can. Factae sunt leges.



316 OF LAWS PENAL

bound to give him his liberty ; a that is, as his servant was a
loser, so must he that caused it : the man lost his tooth, and
the master lost the man ; he gains his liberty, that lost an
eye. Now that this was to be done by the master himself
without compulsion from the judge, is therefore more than
probable, because God, who intended remedy to the injured
servant, had not provided it, if he left the matter to the
judge, to whom the servant could have no recourse without
his master please ; and if he give him leave to go, it is all
one as doing of it himself, for he that gives leave that him-
self be compelled, first chooses the thing, and calls in aid
from abroad to secure the thing at home. But, therefore,
God bound the conscience of the man, tying him under pain
of his own displeasure that the remedy be given, and the
penalty suffered and paid under the proper sentence of the
obliged criminal.

3. To the same purpose was that law made for him that
lies with a woman in the days of her separation, he shall be
unclean until the evening ; now that this was not to be in-
flicted by the judge, but that the guilty person should him-
self be the executioner of the penalty, is therefore certain,
because by another law concerning the same legal unclean-
ness it was decreed, that the fact shall be capital, that is,
if it come before the judge : of which I have already given
account. 5

4. Thus also God imposed upon him that ate of the holy
things unwittingly, the burden of paying the like, and a fifth
part besides, for punishment of his negligence and want of
caution. 6 This himself was to bring, together with the price
of redemption or expiation. Now this being done against
his will, might also be done without the observation of any
other ; and yet upon the discovery he was thus to act his own
amends and penalty.

5. And indeed the very expense of sacrifices, to the
bringing of which the criminals were sentenced by the law,
is sufficient demonstration of this inquiry ; for it was no
small burden to them, and diminution of their estates, to
take long journeys, and bring fat beasts and burn them to
the Lord; but to this they themselves were tied/ without

a Exod. xxi. 25, 26. b Lib. ii. c. 2, rule 3, n. 8.

c Levit. xxii. 14. d Num. v. 6.



AND TRIBUTARY. 317

injunction from the priest, or sentence from the judge. And
this appears, because they were tied to a distinct punishment
if the matter fell into the judge's hand : they were in case of
theft to restore fourfold : but if they had sinned in this
instance or in any other that men commit, they were bound to
come and confess it, and shall recompense the trespass with
the principal thereof, and add a fifth part to him against
whom they have trespassed. This the Jews call " confes-
sionem super peccato singular!," a special confession of a
sin ; to which because the sinner was sentenced by the law,
and had a lighter amends appointed him if he did it volun-
tarily, but a much heavier if he came before the criminal
judge; it follows plainly, that God tied these delinquents to
a voluntary or spontaneous susception of their punishment.
It was indeed an alleviation of their punishment ; for the
criminal was bound to confess, say the Jewish doctors, and
say when the beast goes to sacrifice, thinking as if he were
going as the beast is, " O Domine, ego reus sum mortis, ego
commeruissem lapidari propter hocpeccatum, vel strangulari
propter hanc praevaricationem, vel comburi propter hoc cri-
inen ; O Lord, I am guilty of death, I have deserved to be
stoned, or strangled, or burnt alive, for this crime," accord-
ing as the sin was : but his being the executioner of the
Divine sentence in the lesser instance, did prevent the more
severe and intolerable condemnation.

6. For indeed such are the mercy and dispensation of
God : God's law decrees evil to him that does evil ; if we
become executioners of the law of God and of his angry sen-
tence, we prevent the greater anger of God ; according to
that of St. Paul, 6 "Judge yourselves, brethren, that ye be
not judged of the Lord." If we humble ourselves, God will
exalt us ; if we smite, he will spare ; if we repent, he will
repent : but therefore, in these cases between God and us, it
is so far from being a grievance, that we become executioners
of the sentence decreed by law against us, that though it be
an act of justice in God to oblige us to it, yet it is also a very
great mercy. For as in the law of Moses, the spontaneous
susception of the punishment did prevent the heavier hand
of the judge from falling on him ; so in the evangelical law,
it prevents the intolerable hand of God. So that in relation

e i Cor. xi.



318 OF LAWS PENAL

to the law of God it is an action of repentance ; and repent-
ance being a penal or punitive duty, he that was tied to
bring in his own oblation, to make his own amends, to con-
fess willingly his sin, was in effect tied to nothing but to a
voluntary repentance.

7. And thus it is also in some proportion in human laws.
For by these premises thus much is gained, that to oblige
the criminal to a spontaneous suffering of the punishment,
appointed by the laws of a just superior, is not naturally
unjust ; and it is not always intolerable ; and it may be very
reasonable ; and it may be a design of mercy, or at least a
very apt ministry of justice : and therefore, there can be no
reasonable objection against it, but that upon just account,
and in just measures, and for great reason, and by the pro-
portions of equity, it may be done in human laws.

8. For, (1.) Whatsoever is not against the law of nature,
nor the law of God, may be done or enjoined to be done by
the laws of man ; for the power of magistrates is the next
great thing to God and nature. Now, concerning this, we
have security not only from the foregoing instances, but from
the law of Christ concerning divorce upon the instance of
adultery : the offending party loses his or her right respec-
tively over the body of the other, and cannot lawfully demand
conjugal rights. The injurious person may beg for pardon
and restitution, but is unjust if he require any thing as
duty. The woman loses her rights of society, and the man
of superiority, in case they be adulterous ; and if they do not
quit their former rights, and sit down under their own bur-
den, and minister the sentence of God by their own hands,
they sin anew : every such demand or act of dominion is ini-
quity and injustice ; it is an act of an incompetent power ; and
therefore, under pain of a new sin, they must not act under it.

9. (2.) A man can inflict punishment upon himself. Thus
Zaccheus, in expiation of his sins, offered half his goods to
the poor, and restitution fourfold ; which was more than he
did need ; for if his confession and restitution were sponta-
neous, he was tied only to the principal, and the superaddi-
tion of a fifth part, as appears above. But he chose the
punishment, even so much as the judge himself could have
inflicted. Thus we read of a bishop in the primitive ages of
the Church, who, " quia semel tactu foemineo sorduerat,



AND TRIBUTARY. 319

because he had once fallen into uncleanness," shut himself
up in a voluntary prison for nine years together : and many
we read of, who, out of the spirit of penance, lived lives of
great austerity, using rudenesses to their bodies, by the
pain of their bodies to expiate the sin of their souls. Now
whatsoever any man hath power to do to himself, that the law
hath power to command him ; supposing a reason or a neces-
sity in the law proportionably great to the injunction, and
to be of itself a sufficient cause of the suffering. It is true
a man may do it to himself to please his humour, or for vain-
glory, or out of melancholy. I do not say he does well in so
doing ; but that he hath power to do it, without doing injury
to any one : and if he does it to himself without cause, or
without sufficient cause, he does no wrong ; he does no more
than he hath power to do, always provided he keeps within
the limits of the sixth commandment. Now although the
law pretends not to this power of doing it without reason,
because all the power of the law is sv r <rebg /, " in rela-
tion to others," in commutative and distributive justice, and
public and private charities ; yet the same authority, which
any man hath over himself in order to private ends, the law
hath over him in order to the public, because he is a part of
the public, and his own power over himself is in the public,
as every particular is in the universal. Now the law hath a
greater power than the man ; for a man hath not power over
his own life, which the law hath ; so that whatever a man
alone can do, that the law can command him to do (except
it be in such things which are wholly by God left in a man's
power, and are subjected to no laws of man, and commanded
by no law of God ; as in the matter of single life, and other
counsels evangelical) : the same things, 1 say, though not
for the same reasons. If therefore the man can upon him-
self inflict an evil, which he hath deserved, the law can
compel him, that is, she hath competent authority to do it :
and then he is bound in conscience.

10. (3.) In matters favourable, and yet of great interest,
we find that there are many events by the sentence of the
law without the sentence of a judge. Thus the right of primo-
geniture is sufficient, ordinarily, to enter upon the inherit-
ance without a solemn decree of court : and if we consider
the reason of this, it will be of equal force in the present



320 OF LAWS PENAL

inquiry. For when matters are notorious, and the people
willing, and it is every man's case, and there is a great neces-
sity, and public utility, it is sufficient, when the rule is set ;
every man knows his part, and his way, and judges are not
necessary. But when men are to blame, and there are
intrigues in causes, and men will snatch at what is none of
their own, and they will not understand their duty, nor judge
righteous judgments in things concerning themselves and
their neighbours; it is necessary that there be judges, arid
advocates, and all the inferior ministers of laws, that where
the law is intricate, and men cannot judge and discern aright,
or when they are interested and will not, the law may be
interpreted, and their duty explained, and every man righted
that otherwise would be wronged. The sentence of the
judge is but accidentally necessary : for the law saying that
the eldest son is heir to an intestate father, the case is plain,
and who is the eldest son is notorious, and he is willing
enough to enter upon the inheritance ; and therefore, besides
the law in this case, there needs no sentence of the judge.
Now the law is as plain in the condemnation of some crimes,
and the assignation of some punishments. But because men
are not willing to enter into punishment, and they are not
tied publicly to accuse themselves, therefore there are judges
to give sentence, and executioners appointed. And this is
well enough in some cases : but because there are some cases
in which it is necessary that the laws be obeyed in private
as well as in public, and yet without penalties a law is but
a dead hand and a broken cord ; the law annexes punish-
ments, but is forced to trust the sinning hand to be thesmiter,
because the private action cannot be publicly punished,
because not brought before the judge.

11. (4.) Besides this, there are some actions of so evil
effect as to the public, that for detestation's sake they are
to be condemned as soon as done, hated as soon as named,
strangled as soon as born : and when by such a sentence the
act is represented so foul, the man stands more ready for
repentance, and himself is made the instrument. It is like a
plain case, in which any man may be allowed to be a judge ;
for modesty's sake, and for humanity every man will condemn
some sins, even though themselves be the guilty persons.
However, the law takes the wisest course to give a universal



AND TRIBUTARY. 321

sentence, that as the man is auroxar^yogoj, so he may be
aiiro/caraxf/rog, ' self-accused,' and 'self-condemned;' and not
to expect the contingent discovery, and the long deferred
solemnities of law. "Some sins go before unto judgment,"
says the apostle, " and some follow after :" that is, some are
condemned * ipso jure' by the law, and the man does 'ipso
facto' incur the penalty; others stay for the sentence of the
judge.

12. (5.) In the court of conscience, every man is his own
accuser, and his own executioner ; and every penitent man
is a judge upon himself: God trusts man with the infliction
of punishments and hard sentences upon himself for sin ;
only, if man fails, God will judge him to worse purposes : and
so does the law. And as the impenitent people favour them-
selves to their own harm, for they sin against God even in
their very forbearing to punish and to kill the sin ; so do the
impenitent disobey the law by not being their own execu-
tioners of wrath : but in both cases the conscience is obliged.

The thing therefore is just, and reasonable, and useful.

13. Now for the reducing of this to practice, and stating
the cases of conscience for the subject, as I have already
done for the lawgiver, I am to shew,

1. In what cases the conscience of the subjects can be
bound to inflict penalties upon themselves without the sen-
tence of the judge.

2. By what signs we shall know when the law does intend
so to bind ; that is, when the sentence is given by the law, so
that the sinner is ' ipso facto' liable to punishment, and must
voluntarily undergo it.

In what Cases the Criminal is to be his own Executioner.

14. (1.) When to the execution of the punishment ap-
pointed by the law, there is no action required on the part
of the guilty person, the conscience is bound to submit to
that sentence, and by a voluntary or willing submission
verify the sentence ; such as are excommunication, suspen-
sion, irregularity, and the like. Thus if irregularity be ' ipso
facto' incurred, the offending person is bound in conscience
not to accept a benefice or execute an office to which, by that
censure, he is made unable and unapt. If a law be made,
that whoever is a common swearer, shall be ' ipso facto '

VOL. XIII. Y



322 OF LAWS PENAL

infamous, he that is guilty is bound in conscience not to offer
testimony in a cause of law, but to be his own judge and
executioner of that sentence. But this is not true in all
cases, but with the provision of the following measures.

15. (2.) If the law imposes a penalty to be incurred ' ipso
facto,' yet if the penalty be moderate, equal, and tolerable,
the conscience is obliged to a voluntary susception of it,
before the sentence of the judge, although the sentence be
not privative, but executive ; that is, though there be some-
thing to be acted by the guilty person upon himself. Thus
if excommunication be incurred 'ipso facto,' he that is guilty
of the fact deserving it, and is fallen into the sentence, is not
only bound to submit to those estrangements and separations,
those alienations of society and avoidings, which he finds from
the duty of others, but if by chance he be in a stranger-
place, where they know not of it, and begin Divine service,
he is bound in conscience to go away, to resign an ecclesias-
tical benefice, if he be possessed of one, and other things of
the same necessity, for the verification of the sentence : and
the reason is, because every act of communion or office is in
his case a rebelling against the sentence of the law, the veri-
fication of which depends upon himself as much as upon
others : for every such person is like a man that hath the
plague, all men that know it avoid him ; but because all
men do not know it, he is bound in conscience to avoid them,
and in no case to run into their company, whether they know
him or know him not. Now because this does not oblige to
all sorts of active executions of the sentence, the following
measures are the limit of it.

16. (3.) The law does not oblige the guilty person to such
active executions of the sentence, which are merely and
entirely active ; that is, which do not include a negative,
or something contrary to the passive obedience. Thus if a
traitor be sentenced to a confiscation of goods, and this be
'ipso jure' incurred; the guilty person is not tied to carry
all his goods to the public treasure, but he is tied not to
change, not to diminish, not to alien, not to use them other-
wise than the law permits ; because if he do any thing of
these, he does something against the sentence of law, which,
in his case, is rebellion and disobedience. He may be
truly passive, and perfectly obedient to the sentence of the



AND TRIBUTARY. 323

law, without hiring porters or wagons to carry his goods
away ; and the custom of the law requires it not : but if he
does alien his goods, he hath not so much as the passive
obedience.

17. (4.) In punishments corporal the laws do not pro-
ceed without the sentence of the judge; except it be in the
court of conscience, which is voluntary and by choice. Thus
no man is * ipso jure' condemned to be hanged, or to be
whipped ; and no man is by any law bound to inflict such
punishments on himself; because there is a natural abhor-
rence in such actions, and it is that odious part of the law,
which is so much against nature and natural affection, that
none but the vilest part of mankind are put to do it unto
others : and therefore, because the laws do enjoin no such
thing, the inquiry is needless, whether in such cases the con-
science be obliged. But this is wholly depending upon the
manners of men and the present humours of the world.
Amongst some nations it was otherwise; and no question
but it might be so if by circumstances, and the accidents of
opinion, and the conversation of the world, the^ thing were not
made intolerable. Plutarch f tells of Teribazns, that being
arrested by the officers of death, he resisted with such a
bravery as he used against the king's enemies; but being
told that they were sent by the king, he presently reached
forth his hands and offered them to the lictors to be bound.
But this was no great matter, it was necessary ; and he that
is condemned to die by a just authority, owes to it at least so
much that he resists not, that he go to death when he is called,
that he lie down under the axe when he is commanded : so
did Stilico at the command of his son-in-law, Honorius the
emperor. It was more which was done by the Lithuanians
under Vitoldus their king, who was brother to that Uladislaus,
famous for a memorable battle against the Turks ; he com-
manded many to death, and they died without the hangman's
hand, being the executioners of their king's laws upon them-
selves. And Sabellicus 8 tells, that the Ethiopians, when
their king sent a messenger with the ensigns of death, they
presently went home and died by their own hands. And this
was accounted among them so sacred an obligation, that
when a young timorous person thought to have fled, his

f De Superstitione. e Lib. ii. Enn. 1.



324) OF LAWS PENAL

mother took her girdle and strangled him, lest he should dis-
honour his family by disobeying the law out of fear of death.
This was brave ; but some men cannot be willing to die, and
few can well suffer it : but therefore it is hard that any one
should be compelled to do it to himself. Therefore the laws



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