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of Christendom are wise and gentle ; and excepting that of
the Lithuanian prince, who is reported to have been a tyrant,
it is not enjoined by any prince or any law amongst us, that
I know of. But this is not only true in active executions,
but in the passive penalties, which are very violent and ex-
treme. Thus i"a man were justly condemned to be immured
and starved to death, he is tied to submit to it, as not to
rebel, and by violence quit hirnsel": but he is not tied so much
as to the privative execution ; that is, he is not bound to
abstain from meat if it be brought to him. Thus we find in
story, of the pious Persian lady, who, to her father condemned
to death by starving, gave her breasts to suck, and preserved
his life ; and he not at all made infamous by not dying, but
had his life given as the reward of his daughter's piety.

18. (5.) Condemned persons are not tied to put them-
selves to death, or cut off a member with their own hands,
or do execution, by doing any action, or abstaining from
doing any thing, when such doing or abstaining is the suffi-
cient, or the principal, or the immediate killing or dismem-
bering. But to the under ministries they are tied, which
cannot be done without them ; that is, they are tied so far
to act, as without which they cannot suffer : and this is to be
extended even to the principal and immediate act of killing,
if they only ordinarily can do it. Thus a condemned crimi-
nal is bound to go to execution, or suffer himself quietly to
be carried ; to lie down under the hangman's axe, to ascend
the ladder ; and it is a great indecency of dying, and directly
criminal, which is frequent enough in France, and is reported
of Marshal Biron, to fight with the executioner, to snatch
the weapons from the soldiers, to force the officers to kill
him, as a wild bull or lion is killed. But a condemned man
is also tied to drink his poison, if that be appointed him by
law ; for though this be the immediate act of killing, to
which ordinarily condemned persons are not obliged, yet
because it cannot well be done by an executioner without his
consent, or extreme violence, the guilty person is bound to



AND TRIBUTARY. 325

drink it : the reason is, because the law must be obeyed, and
at least a passive obedience is to be given to the severest of
her sentences ; and the passiveness of a man is to be distin-
guished from the passiveness of a beast ; that which cannot
be avoided must be borne well : and therefore if a man be
banished he must go away, and not be dragged ; and he that
so resists the laws that he forces her ministers to hale the
criminal to death like an unwilling swine, deserves the burial
of an ass or dog. But this always must suppose the laws to be
just, and the power competent ; for else the suffering person
may consider whether the quiet submission to it be not a veri-
fication of the sentence, or of the authority, though even in
such cases it is not the hangman that is unjust, or to be
resisted, but the judge or the laws ; and therefore they are to
be protested or declared against ; for that is all which is left
to be done by the oppressed person.

19. (6.) When the punishments are principally or merely
medicinal, the conscience is bound to a voluntary execution
of the sentence, if the law requires it. For then the laws are
precepts of institution and discipline : and they are intended
as mercies to the man, as well as to the public ; and of mercy
every man may very well be minister. It hath in it no
indecency for a man to mingle his own severe potion, or let
himself blood, or lance an ulcer ; and there is no more in the
medicinal punishments of the law. Thus the laws can com-
mand us to fast, to wear sackcloth upon the bare skin, to go
barefoot, to watch all night upon a solemnity of expiation,
to inflict disciplines, and the like ; and for these we are to
expect no other process but the sentence of the law, no judge
but our consciences, no executioners but ourselves. This
relies upon the former reasons, and the mere authority of the
law, and the nature of the thing free from all objections.

20. (7.) All sentences of law, which declare a fact to be
void, or a charge and expenses to be lost, or a privilege to
cease, are presently obligatory to the conscience. '* Irrita
prorsus ex nunc, et vacua nunciamus," is usual in the style
of laws: "et sit ipso jure irritum et inane; et careat omni
robore firmitatis, non obtineat vires ; Let it be of no force,
let it not prevail, let it be void, let him want all privilege, all
honour, dominion, action, or profit." For these and the like
words, say the logicians, have the force of a universal sign,
and do distribute the noun that is governed by the verb ; so



326 OF LAWS PENAL

they speak ; that is, it signifies and hath force in every
particular, and in every period of time ; ' let it want force,'
that is, ' let it want all force,' that is, * be of no use at all ;'
" careat" is as much as " omnino, penitus, prorsus careat."

21. (8.) But these particulars suffer one limitation. A
man is not bound to suffer the penalty of the law before the
sentence of the judge, though the fact be sentenced and con-
demned ' ipso jure,' if the fact be made public, and brought
before the judge ; because he, taking it into his cognizance,
revokes the former obligation by imposing a new ; by chang-
ing the method of the law, and lessening expectation. Thus,
by the laws ecclesiastical, which were anciently of force in
England, and are not yet repealed, " notorius percussor
clerici, he that openly or manifestly strikes a bishop or
priest," is ' ipso jure ' excommunicate ; and to this sentence
the guilty person is bound to submit : but in case he be
brought before the criminal judge, and there be solemn
process formed, he may suspend his obedience to the law,
because the judge calls him to attend to the sentence of a man.

22. (9.) But yet this is also so to be understood to be
true in all, " exceptis sententiis irritantibus, excepting sen-
tences of the declaring actions to be null, or privileges void."
For in these cases, though the judge do take into his cogni-
zance the particular fault, and give a declarative sentence of
such a nullity and evacuation, yet the action does not begin
to be null, or the privilege to cease, from the sentence of the
judge, but from the doing of the fault, and sentence of the
law : and therefore if a question arises, and the judge declare
in it, the nullity is only confirmed by the judge, but it was
so by the sentence of the law. Now the reason of the differ-
ence in the case of nullities and evacuations from other
cases is, because that which is not hath no effect, and can
produce no action ; and as a citizen told the people of Athens,
who, upon the first news of Alexander's death, would have
rebelled, " Stay (says he), make no haste, for if he be
dead to-day, he will be dead to-morrow :" so if the judge
declare that such an action was null, it was null all the way ;
if he says it be dead now as a punishment of the fault, it
was dead as soon as the fault was done ; for it died by the
hand of the law, not by the hand of the judge. In other
things the limitation is to be observed.

23. (10.) And this also holds in case that it be upon any



AND TRIBUTARY. 327

account necessary that the judge give a declarative sentence :
for sometimes in regard of others, the judge must declare
such a person excommunicate, or deprived, or silenced, or
infamous, that they also may avoid him, or do their respec-
tive duties. But although the guilty person be in conscience
regularly obliged before that declarative sentence, it being
nothing but a publication of what was in being before ; yet
it being a favourable case, and the law not loving extremities
and rigours of animadversion, it is to be presumed that the
law gives leave to the guilty person to stay execution till
publication. Because no man is bound directly to defame
himself; which he will hazard to do, if he execute the sen-
tence upon himself before the judge calls others into testi-
mony and observation of the sentence. But though the sen-
tence may, upon favourable conditions, be retarded, it must
at no hand be evacuated. Therefore, if the judge meddle
not, the man is left to the sentence of the law. And it is
in all these particulars to be remembered, that " the law is a
mute judge, and the judge is a speaking law." It is the say-
ing of Cicero ; h and from thence is to be concluded, that
when the judge hath spoken, he hath said no new thing, and
he hath no new authority ; and, therefore, if the law hath
clearly spoken before, she hath as much authority to bind
where she intends to bind, as if she speaks by her judges.

24. These considerations, and this whole question, are of
great use in order to some parts of repentance, and particu-
larly of restitution. For if a law be made, that if a clerk,
within twelve months after the collation of a parish-church,
be not ordained a priest, he shall ' ipso jure' forfeit his eccle-
siastical benefice ; if he does not submit to the sentence, and
recede from his parish, he is tied in conscience to make
restitution of all the after-profits which he receives or con-
sumes. So that it hath real effect upon consciences and the
material occurrences of men.

25. But then for the reducing of it to practice, I am next
to account by what signs we shall know when it is * sententia
lata a jure,' when it is ' lata ab homine;' when it is ' lata,'
and when ' ferenda ;' that is, when the criminal is to attend
the sentence of the judge, and the solemnities of law and

h Vere dicitur, magistratum legem esse loquentem ; legem autem, mutum
magistratum. De Leg. iii. c. 1. 2. Goereatz, p. 2i7._(J. R. P.)



328 OF LAWS PENAL

execution by the appointed officer; and when he is to do
it himself, by his own act or positive submission upon the
sentence of the law.

Signs by which we may judge when the Criminal is
condemned ' ipso facto'

26. The surest measures are these. Those laws contain
' sententiam latam,' and oblige the criminal to a spontaneous
susception of the punishment, when (1.) the law expressly
affirms, that the guilty person does * ipso facto' incur the
sentence without further process, or sentence of the judge.

(2.) When the law says, that the transgressor shall be
bound in conscience to pay the fine, or suffer the punish-
ment, contained in the sanction of the law : which thing, be-
cause it is not usual in laws, lest I should seem to speak
this to no purpose, I give an example out of the Spanish laws :
for I find, in the laws of the kingdom of Castile, 1 divers in-
stances to this purpose ; particularly, after the assignation
of the secretary's fee, appointing how much he may receive
for the instruments of grace which he makes, it is added,
" Jurent, quod observabunt ea, quae in praecedenti capitulo
ordinata sunt ; et quod non accipient munera, et quod sol-
vent poenas, si in eas inciderint, ad quas ex nunc eos con-
demnamus, ita ut sint obligati in foro conscientiae ad sol-
vendum eas, absque hoc quod sint ad illas condemnati." And
the same also is, a little after, k decreed concerning judges and
public notaries, that they take nothing beyond their allowed
fees and salaries : and if they do, they are to pay a certain
fine. They are also to swear to observe that ordinance ; and
in case they do not, that they will pay the fines to which the
law does then sentence them, that they be bound in con-
science to do it without any further condemnation by the
sentence of any man. Now, the reason of this is, because
the conscience being intrusted and charged with the penalty,
must suppose only the duty and obligation of the man whose
conscience is charged. It were foolish to charge the con-
science, if the conscience were not then intended to be
bound to see to the execution : but that could not be, if the
sentence of the judge were to be expected; for that is a
work of time, and will be done without troubling the con-

Lib. ii. Ordinat Regal, tit. 9. lib. i. k Ibid. tit. 15.



AND TRIBUTARY. 329

science. Therefore the conscience, being made the sheriff or
witness with the charge of execution, supposes the whole
affair to be his own private duty.

27. (3.) In censures ecclesiastical it hath sometimes been
the usage of the legislator to impose a penalty, adding, that
' donee satisfecerit,' until such or such a thing be done, the
criminal shall not be absolved : and this also is an indication
that the sentence is made by the law, and is * ipso facto' in-
curred by the delinquent, because it leaves a secret tie upon
his conscience obliging him to do it ; which were needless,
if the criminal judge were to be intrusted with it, for he is
otherwise sufficiently intrusted with compulsories to secure
the executions. Of this nature is that constitution of Inno-
centius, 1 describing the order for an archbishop's visitation
of his own, and the diocesses of his suffragan bishops; for-
bidding severely him or any of his followers to receive a fee,
bribe, reward, or present; " qualitercunque offeratur, under
what pretence soever it be offered," lest he be found to seek
that which is his own, not that which is of Jesus Christ :
adding, " Quod si fuerit contra praesumptum, recipiens male-
dictionem incurrat, a qua, nunquam nisi duplum restituat,
liberetur ; He that shall presume to do otherwise, and re-
ceive any thing, shall incur a curse, from which he shall
never be absolved till he have restored it twofold." This
relies upon the former reason.

28. (4.) Panormitan gives this rule, That when a sen-
tence is set down in the law in words of the present or pre-
ter sense, it concludes the sentence to be ' ipso facto' in-
curred ; for whatsoever is ' ipso jure' decreed, is ' ipso facto*
incurred : and of this decree, the present and past tenses,
says the abbot, are sufficient indication ; that is, if the
words be damnatory, as ' Excominunicamus,' ' Anathemate
innodamus,' ' We do deprive him of all rights and offices/
&c. : for if the judge, using the like words, passes a sen-
tence by virtue of those words, so does the law, there being
the same reason, the same authority, the same purpose, sig-
nified by the same form of words. But if the words be of
the present or past time, and yet not immediately damna-

1 4. cap. Rotnana, sect. Procurationes, de Censibus, lib. vi.
m Cap. Cajterura, et cap. Nonuulli de Rescriptis, cap. Novit. in 6ne de his qua
fiunt a Prelate-.



330 OF LAWS PENAL

tory, they do imply the sentence to be made afterward ; as
' decerniinus,' ' definivimus,' ' declaramus,' and the like. But
if these words signify only ministerially, and not principally,
that is, if they be joined with other words in the present or
past tense, then they declare the sentence past and ' ipso
facto' to be incurred; as " declaramus eum privatuin dominio
bonorum:" then the case is evident.

29. (5.) Of the same consideration it is, when the sen-
tence of the law is set down with the verb-substantive * sum,'
of what tense soever, unless by a future participle its nature
be altered. Thus, if a law says, He that is absent from his
parish, without just cause to be approved by his bishop,
above six months, " est" or " erit infamis, is or shall be
infamous;" the sentence is ' ipso jure lata,' inferred by law,
and ' ipso facto' incurred ; because the verb annexes the
punishment to the fact without further process. But if the
verb be annexed to a future participle, the case is altered ;
the sentence is not to be undergone till the judge have de-
clared it. Now this relies upon the force of the words and
the proper grammatical way of speaking, which is the best
way of declaring the mind of a man, or the mind of the law ;
unless where it is confessed that the lawgiver did not intend,
or use, to speak properly or by grammar, but by rude cus-
tom. This note I have in A. Gellius, n " Verbum esse et erit,
quandoper sese ponuntur,habent atque retiuent tempus suum ;
quum vero praeterito jugantur, vim temporis sui amittunt, et
in praeteritum contendunt." If these words be not altered,
they signify just by themselves; " est" or " erit exconimuni-
catus," or " infamis," signifies the punishment to begin as soon
as the fact is done : but " est excommunicandus," that is a
future that relates to another time, and stays for the sentence
of the judge. But there must be something more to clear
this. For, if * erit' be the future tense, why shall it not as
well signify ' sententiam ferendam,' as ' est excommunican-
dus;' since the verb is to be left to his own time, as well as
the present tense brought thither by a future participle?
Therefore to this I add, that when the verb or participle does
signify the action or ministry of some other person beside
the law and criminal, then it shews that the declaration of the
judge is to be expected ; as in " est excommunicandus," that

n Lib. xvii. c. 7. Oiselii, p. 938.



AND TRIBUTARY. 331

is, " he is to be excommunicated," viz. by the sentence of his
ordinary judge : but " erit infamis," or " erit excommunica-
tus," implies no man's action at all, but supposes the thing
finished without any more to do ; and then comes in the rule
of Nigidius in A. Gellius before spoken of. ' Infamis' sig-
nifies presently, that is, he shall be so from the doing the
crime; and ' excommunicatus' signifies presen' or past, and
therefore by it the future tense shall be altered, and there-
fore the sentence presently incurred. But concerning this
particular, who pleases to be critical and curious in minutes
may delight himself by seeing seventy-five fallencies, and
alterations of cases by the variety of tenses expressed in
words of law, in Tiraquel, in his excellent and large commen-
taries, in the interpretation of the word ' revertatur.' For
my own part, I am content to assign such measures as are
sure, plain, easy, and intelligible. " Nobis non licet esse
tarn disertis."

30. (6.) The sentence of the law does presently oblige
the conscience, if it be expressed in adverbs of hasty or pre-
sent time; such as are " confestim, illico, extunc, extemplo,
presently, forthwith, from thenceforward," and the like : for
those who appoint the punishment to be incurred without
any interval of time, in effect say, that we are not to expect
the dull and long-protracted methods of courts and judges,
and commissions and citations, and witnesses and adjourn-
ments. ' Protinus,' i. e. ' non exspectato judiciorum ordine,'
say the lawyers.

Protinus ad regem cursum detorquet larban.P

* Forthwith,' that is, without the longer methods of the
court.

Xec mora, continuo matris praecepta facessit.i

These words and the like have present effect, and there-
fore do signify a present obligation of conscience. Con-
cerning the signification of which, and the like words, it is
hard to say, whether we are to be guided by the lawyers or
by the grammarians. The lawyers are the best witnesses of
sentences, and precedents, and the usages and the customs
of laws ; and therefore can best tell how the laws are said to

In lib. Si unquam, cap. de Revocandis Donationibus.
P Yirg. ^En. iv. 196. ir. Georgic. 548.



332 OF LAWS PENAL

bind, and what sentences they are said to contain : and be-
cause by them we are to be judged in public, if questions do
arise, from them also we may take our rule in private. This
seems reasonable: but, on the other side, I find that law-
yers themselves say otherwise ; and I have seen Tiraquel
much blamed for quoting Bartholus, Baldus, and Salicetus 1 "
for the signification of the word ' mox, by and by,' which
is of use in this present rule : because, though they were
great lawyers, yet they were no good grammarians ; and
therefore that in these cases, Erasmus and Calepine, Valla
and Linacre, Cicero and Terence, Priscian and Donatus, were
the most competent judges. There is something on both
sides, which is to weigh down each other, according as some
other consideration shall determine. But therefore, as to the
case of conscience, I shall give a better and surer rule than
either one or other, or both : and that is,

31. (7.) This being in matters of load and burden, by the
consent of all men, the conscience and the guilty person are
to be favoured as much as there can be cause for. Therefore,
whenever there is a dispute, whether the sentence of the law
must be incurred presently, or that the sentence of the judge
is to be expected ; the presumption is always to be for ease,
and for liberty, and favourable senses. Burdens are not to
be imposed upon consciences without great evidence, and
great necessity. If the lawyers differ in their opinions con-
cerning the sentence, whether it be already made, or is to be
made by the judge, let them first agree, and then let the
conscience do as she sees reason. Thus, if the word ' mox,
by and by,' be used in a sentence of law, because we find
that in some very good authors it signifies with some inter-
val of time (as in Cicero, " Discedo parumper a somniis :
ad quae mox revertar ;" s and " Praeteriit villam meam Curio,
jussitque mihi nuiiciari se mox venturum:" 1 ) therefore we
may make use of it to our advantage, and suppose the con-
science of a delinquent at liberty from a spontaneous execu-
tion of a sentence of law, if for that sentence he have no other
sign but that the word ' mox' is used in the law. " In poenis
benignior est interpretatio facienda, In matters of punish-
ment we are to take the easier part ;" and that is to stay

* Alph. a Castro, lib. ii. de Lg. Pcen. c. 7.

De Divin. i. c. 23. Davis. Rath. p. 61. * Ad. Altic. x. 4.



AND TRIBUTARY. 333

from being punished as long as we can : and in proportion
to this, Panormitan u gives this rule ; " When the words of
the law signify the time past, or the time to come, we are to
understand it in the more favourable sense ; and that it in-
cludes the sentence of the judge, before which the criminal
is not obliged. And to this very purpose the words of infinite
and indefinite signification are to be expounded : and this
answers many cases of conscience, and brings peace in more;
and the thing being reasonable, peaceful, and consonant to
the common opinion of the lawyers, ought to pass for a just
conclusion and determination of conscience.

32. (8.) After all, as there is ease to the criminal, so there
must be care of the law ; and therefore when a law imposes
a punishment which would prove invalid, to no purpose and
of no effect, unless it be of present force upon the committing
of fact, it is to be concluded, the law intends it for a ' sen-
tentia lata a jure,' that it presently obliges the conscience of
the guilty person. The reason is, because it cannot be sup-
posed that the law should do a thing to no purpose, and
therefore must intend so to oblige as that the sin be punished.
If therefore to expect the sentence of the judge would wholly
evacuate the penalty, or make it insufficient to do the pur-
pose and intention of the law, the sentence of the law must
be suffered by the guilty person without the judge. And
this is true, however the words of law be used, whether
in the past, present, or future time, whether simply or by
reduplication, whether imperatively or infinitely: such are
the penalties of infamy, irregularity, nullity of actions or
contracts, especially if they be of such contracts, which, if
they once prove valid, are so for ever, as in the contract of
marriage. And therefore if a law be made that a man shall

O

not many her whom, in her husband's lifetime, he had pol-
luted, this must be supposed to be meant of nullifying the
contract before it is consummate ; that is, it is a sentence
which the criminal must execute upon himself ; for if he does
not, but ' de facto* marries the adulteress and consummates
the marriage, it will be too late to complain to the judge ;
for he cannot annul the contract afterward.

Cap. in Pocnis de Reg. Jur. lib. vi.



334 OF LAWS PENAL

RULE III.

Penalties imposed by the Judge must be suffered and submitted
to ; but may not, after suck Sentence, be inflicted by the
hands of the condemned.

1. THE first part of this rule hath in it but little difficulty ; for
there is only in it this variety : in all punishments that are
tolerable, that is, all but death, dismembering, or intolerable
and extremely disgraceful scourgings, and grievous and
sickly imprisonments, we owe not only obedience to the laws,
but reverence and honour ; because whatsoever is less than
these, may, without sin, and without indecency, and without



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