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que, dum secretum est; cum aliquos viderint, in fletus uovos
excitantur." So did Gellia in the epigram,

Amissum non flet, cum sola est, Gellia patrem :
Si quis adest, jussae prosiliunt lacrimae."

They are full of tears in company, but in their retirements
pleased well enough. Now things of this nature are indif-
ferent ; but are good or bad according to the cause or the
design. " Mourn for the dead," saith Ben Sirach, " and
that a day or two, lest thou be evil spoken of." That end
is honest ; and therefore to mourn in solemnity is good, if

'' Orat. zxi. * Vide Senecam Epist. cxv. 8, 9. Ruhkopf. vol. iii. p. 365.
1 Epist. xcix. 15. Rubkopf. vol. iii. p. 258. m Martial, i. 34.

VOL. XIII. C C



386 OF LAWS PENAL

we cannot mourn in passion : and the laws enjoin to a man
and woman respectively * annum Indus, a year of solemn
mourning;' all which time, it is not supposed, the passion
should be troublesome and afflictive. Thus we find David
pretending madness before Achish, the king of Gath ; it was
for his life : and we do not find any of the ancient doctors
blaming the dissimulation.

47. (4.) But that which is here the principal inquiry is,
whether signs not vocal, which have in them ambiguity, and
may signify several things, may be used with a purpose to
deceive. And to this the answer is the same with the former
in the case of equivocation, with this only difference ; that
as there is some more liberty in the use of equivocal words,
than of a simple lie ; so there is some more liberty yet in
equivocal actions than in words, because there may be more
reasons for such dubious actions than for dubious words, and
they are not so near, so usual, so intended significations of
our mind, nor ministries of intercourse and society. But
where they are taken so, they are to be governed by the
same rules ; save only that a less necessity may be a suffi-
cient legitimation of such dubious signs: concerning which,
besides the analogy and proportion to the former rules, there
is no other measure but the severities of a good and a prudent
man taking into him the accounts of Christian simplicity and
ingenuity.

48. I have only one thing to add in order to practice.
There is a liberty in the forecited cases there where there is
a necessity, and where there is a great charity. For in these
cases it is true what St. Chrysostom says, " Fraudis quidem
magnavis modo ne fraudulento animo fiat: quam ipsam turn
ne fraudem quidem nominandam putaverim, veruni oecono-
miam quandam potius ac sapientiam artemque, qua possis e
mediis, iisque imperviis, desperatarum reruin angustiis diffi-
cultatibusque, correctis et emendatis animi vitiis, evadere;
There is a great use of artifices in our words and actions,
when we are hard put to it in desperate cases and extremest
difficulties, and then these arts are not indeed deceptions,
but just escapes." But yet this I say, that it is not safe to
use all our liberty ; because when it is practised freely, we
oftentimes find ourselves ill judges of the necessity. And

D Vide Aquinat. in iii. lib. dist. 38. art. 3. ad 5. Lib. i. de Stcerdot.



AND TRIBUTARY. 387

however it be, yet it is much more noble to suffer bravely than
to escape from it by a doubtful way; 1. For the love and honour
of simplicity, 2. For the endeavours of perfection, 3. For the
danger of sin, 4. For the peril of scandal. And it was bravely
done of Augustus Caesar, who when he had promised ten
thousand sesterces to him that should bring Corocotta, a
famous Spanish thief, alive into his presence; Corocotta him-
self came and demanded the money, and had it, and he was
spared besides : he escaped for his wit and confidence ; but
had the money * pro fide Csesaris, according to the faith
and nobleness of Caesar's justice:' for he might have made
use of the ambiguity of his words to have kept the money,
and hanged the thief; but he thought it nobler to do all that
he could be thought to have intended by his words, 'o (u-
yaXo'v^ir^os, irapprtfiaarDibs *(*) dXjjSstmxoj, says Aristotle, p "The
brave and magnanimous man does not sneak, but speaks
truth and is confident."

49. It cannot be denied what St. Clemens Alexandrinus

Said, 'E.KJ ruv KXqfflov upifaiq {j,6v?) foiqffp TWO,, a oux av TPOJJ-
you/4svw aurw wga^s/V " A good man will, for the good of
his neighbour, do something more than he would do willingly
and of his own accord :" yet when it is his own case, it is
better to let go his liberty than to run a hazard. Sarah did
lie, and she was reproved by the angel ; Abraham did so too,
says Tertullian ; " Saram sororem suam mentitus est," but
he was reproved by Abimelech ; Jacob did lie to his father,
but he is not commended for it ; and Rachel did dissemble,
but she died in child-birth, and it was occasioned by that,
say the Jewish doctors : Simeon and Levi destroyed the She-
chemites by a stratagem, but they troubled the house of
Israel by it : Tamar deceived Judah, but she played the
harlot in deed as well as in words. And concerning those
worthy persons mentioned in Scripture, who did lie or dis-
semble, the Christian doctors have been put to it to make
apologies and excuses, and justifications for them, and are
not yet agreed how to do it. St. Basil and St. Chrysostom
are two examples of several proceedings. St. Basil always
bore his heart upon his hand, and shewed it to every one
that was concerned. St. Chrysostom used craft against the
simple, and fraud against him that spoke all things in

P Lib. iv. Eth. c. 3. Wilkinson, p. 157.



388 OF LAWS PENAL

simplicity. Chrysostom was forced with laborious arts q to
excuse and justify it, and did it hardly : but St. Basil had no
scruple concerning his innocence ; what he had concerning
his prudence and safety does not belong to the present ques-
tion. But of this last particular I have given larger accounts
in a discourse r on purpose.

50. The conclusion is this, If a man speaks a down-
right lie, he can very hardly be innocent : but if by in-
trigues of words and actions, "per involucra" (as Cicero*
calls it), "per orationem intortam" (as the comedy), "by
covers of words," and ' by crooked speeches,' a man have
intercourse, he had need be very witty to be innocent; accord-
ing to the Hebrew proverb, " If a man have wit enough to
give cross and involved answers, let him use it well ;" if he
knows not how to do it well, let him hold his peace. It was
but a sneaking evasion of St. Francis, when the pursuers
after a murderer asked if the man came that way ; ' No,' saith
the friar, thrusting his hand into his sleeve, ' he came not
here.' If a man's wit be not very ready and very clear, while
he thinks himself wise, he may become a vain person. The
devil, no question, hath a great wit, and a ready answer : yet
when he was put to it at his oracles, and durst not tell a
downright lie, and yet knew not what was truth many times,
he was put to most pitiful shifts, and trifling equivocations,
and arts of knavery ; which when they were discovered by
events contrary to the meaning which was obvious for the
inquirers to understand, it made him much more contempti-
ble and ridiculous than if he had said nothing, or confessed
his ignorance. But he that does speak, and is bound to speak,
must speak according to the mind of him with whom he does
converse, that is, so to converse, that by our fault he be not
deceived against his right, against justice, or against charity,
and therefore he had better in all things speak plainly : for
truth is the easiest to be told ; but no wit is sufficient for a
crafty conversation.

' Vide in fine lib. i. de Sacerd. r Serm. of Christian Simplicity.

Oral. i.e. 35, n. 161. Harles. p. 104.



AND TRIBUTARY. 389



RULE VI.

It is not lawful for private Christians, without public Au-
thority, to punish Malefactors, but they may require it
of the Magistrate in some Cases.

1. IN the law of nature it was permitted : but as the world
grew older, and better experienced, and better instructed, it
became unlawful and forbidden ; in some places sooner, in
some places later. The Ephori among the Lacedemonians,
might kill criminals extrajudicially ; and Nicolaus of Damas-
cus relates, that, amongst the Umbrians, every man was the
revenger of his own injuries : for till by laws men were de-
fended, they, by revenges and retaliation, might drive away
the injury as far as was necessary. But because when a man
is in pain and grief, he strikes unjustly and unequally, and
judges incompetently, laws were made to restrain the first
license, and to put it into the hands of princes only, because
they, being common fathers to their people, were most likely
to do justice equally and wisely. " Idcirco enim judiciorum
vigor jurisque publici tutela videtur in medio constituta, ne
quisquarn sibi ipsi permittere valeat ultionem," said Hono-
rius and Theodosius ; That no man might avenge himself,
laws, and judges, and tribunals, were appointed for public
justice."

2. But for this, provisions at first could not be made so
generally, but that some cases would happen, and some gaps
be left open, which every man must stop, and provide for as
well as he could. Thus we find that Phinehas, when he saw
God was angry with the sons of Israel about the matter of
Moab, himself, to divert the anger that was already gone
forth, smote Zimri, a prince among the Simeonites, and his
fair mistress in his arms, and killed them in their crimes.
From his example many zealots among the Jews took liberty
to kill a man that sinned apparently. So Matthias killed a
Jew that offered sacrifice according to the manner of the
Greeks; and the people killed three hundred of their coun-
trymen upon the like account. But this quickly grew into
excess and irregularity; and therefore when our blessed Lord
was zealous for the honour of the temple, he went no further



390 OF LAWS PENAL

but to use a little whip to affright them from their profane-
ness.

3. And yet, in some cases, God a permitted private per-
sons to be executioners ; as in case a Jew tempted his child,
or brother, or neighbour, to idolatry, the tempted person
might kill him without delajting him to the judge ;. and in a
cause of blood, the next of kin might kill the manslayer, if
he overtook him before he took sanctuary. But here the
cases were such, that the private person was not judge, but,
by leave from God, was executioner upon the notoriety of
the fact : for although for a dead person his nearest relation
might with his own hand take vengeance, yet if himself was
wounded, he might not, but by the sentence of the judge,
say the doctors of the Jews ; because he ought not to be
judge, where he could hardly be moderate.

4. In the sea, and in desert places, where there can be no
appeals to judges, every man is executioner of the sentence
of the law of nations. Thus we find that Julius Ccesar pur-
sued the pirates in the Mediterranean and Adriatic seas ;
and because the proconsul would not, he gathered a sudden
navy, and overtook them, and hanged them upon the main-
yards of their own vessels. Thus the wild Arabs and Circas-
sian thieves, that live in vast places, and under no govern-
ment, being public enemies of mankind, and under no laws,
nor treaties or communications of peace, may be killed by
every one that is injured and spoiled by them, when he can
do it. To this agrees that of Tertullian ; " In publicos hostes
omnis homo miles est;" and that of Democritus : A^or^v
vrdvra xriivuv Tig aduog av E/'JJ, xai avTo^tiricf,, %a) xtXeuwv, xa]
fyij<p<ii, " He that kills a thief and a robber with his own hand,
or by command, or by consent, is innocent."



But this is to be understood of the permission in the law of
nature.

5. For in Christianity, men are not easily permitted to
touch blood ; not hastily to intermeddle in the causes of
blood ; not to give sentence for the effusion of it : these
things are to be done with caution, and a slow motion, and
after a loud call, and upon a great necessity, because there

Deut. xiii. 9. b Hes. frag. 69. Gaisford. p. 194.



AND TRIBUTARY. 391

are two great impediments ; the one is the duty of mercy,
which is greatly required and severely exacted of every dis-
ciple of Christ; and the other is, that there is a soul at stake
when blood is to be shed, and then they are told, that as they
judge, they shall be judged, as they measure, it shall be
measured to them again. And therefore criminal judges
have a tender employment, and very unsafe, unless they have
the guards of a just authority, and a great mercy, and an un-
avoidable necessity, and public utility, and the fear of God
always before their eyes, and a great wisdom to conduct
their greatest dangers.

6. That which remains and is permitted in Christianity is,
1. The punishment of reprehension, of which every wise and
good man may be judge and minister; for as St. Cyprian said,
that ' every bishop is a bishop of the catholic Church,' that
is, wherever he chance to be, he must not suffer a soul to
perish if he can help it, but hath right every where to minis-
ter to the necessities of souls, who are otherwise destitute,
and every where to pray in private, to bless, to absolve dying
persons, to supply the defects of a widow and desolate Church ;
so every good man hath power to punish a base and vicious
person by severe and wise animadversions of reproof. For
" a wise man is never a private man," said Cicero; and
Nasica, and Cato, and Fabius, and Lollius, were in author-
ity like perpetual consuls, always in power over a vicious
man.

7. It is not against the laws of Christianity that parents,
and tutors, and masters, and governors, should punish crimi-
nals, that is, such as are subject to them, and by such punish-
ments as are permitted by law, and by such measures as are
agreeable to the just and charitable ends c of their respective
governments, and by the analogy and proportions of Christ-
ian mercy and clemency : in the execution of which punish-
ments, there need no other laws be given but what are dic-
tated by the mind of a charitable, dispassionate, and a good
man. But then, in these governments, there is more liberty
than in any other but the supreme : for a personal injury
done to a father or a tutor, may be punished by the father or

c Jubet Deus ut mnnus nostras super minores semper habeamus, hoc est, ut
peccantes eos assiduis verberibus corrigamus, ue amore inutili et indulgent!^
nimia educeutur ad malum, et ad vitia nutriantur. Lactant. lib. vi. Instit.



392 OF LAWS PENAL

tutor respectively, and so also it may by the supreme power,
" Quurn dignitas auctoritasque ejus, in quern est peccatum,
tuenda est, ne praetermissa animadversio contemptum ejus
pariat, et honorem levet," said Taurus, the philosopher, in
A. Gellius. d An injury done to a superior is a contempt of
his authority, as well as injurious to his person : and if it be
not punished, will soon disorder the superiority. But then
this must be wholly for emendation ; and though anger may
'be the instrument, yet charity must be both the measure and
the end.

8. (3.) When the law hath passed a sentence, and given
leave to any subject to be executioner, he that is injured may
do it. But this is to be understood in one case only that
concerns the subject, and one that concerns the prince.
1. For if the prince commands that whoever finds such a
person shall smite him to death if he can, every man is bound
to it if the law be just; as in the case of treason, or deserting
their military station, it hath sometimes been decreed. " In
reos majestatis, Against traitors" every man is a soldier,
says Tertullian ; who affirms it also concerning all public
enemies. 2. The other case, which relates to the advantage
of the subject, is, when the executioner of the public sentence
is necessary to be done speedily for the prevention of future
mischiefs. Thus Justinian 6 gave leave to every man to kill
the soldiers that came to plunder ; for in that case there was
no staying for solemnities of law, and the proceedings and
method of courts ; " Melius enim est occurrere in tempore
quam post exitum vindicare. Vestram igitur vobis permitti-
mus ultionem, et quod serum est punire judicio, subjugamus
edicto, ut nullus parcat militi, cui obviare telo oporteat ut
latroni." This which the law calls a revenge, is but a mere
defence, it is a taking the mischief before it be intolerable ;
and therefore this will be the more out of question : for cer-
tainly if some punishments are lawful, all necessary defences
are much more ; this only excepted, that the degree of this
is excessive and uncharitable, and therefore ought not to be
done, but in those cases where the evil, likely to be suffered
by the innocent, is intolerable, as, if the plunder be the un-
doing of a man and his family, and will cause them to perish,
or to be extremely miserable ; and therefore Ulpian said well,

d vi. 14. Oiselii, p. 387. e Cod. Rubr. Quando liceat se sine judice vindicare.



AND TRIBUTARY. 393

" Furem nocturnum si quis occiderit, ita demum impune feret,
si parcere ei sine periculo suo non potent; Though the
law permits a man to kill a night-thief, yet he may not do it
if he can secure himself without it :" but when to spare the
thief will be his own undoing, then he may. For it is true
which was said of old,

Res omnes condita; famulantur vitae Luinanx;

And again,

Xobilissimum est quod orbis habet, humana vita.

Nothing is fit to be put in balance to the life of man; and
therefore when a man's life and a man's goods are compared
abstractly, these are extremely outweighed by that ; and
therefore, for little and tolerable losses, it were well if the
laws would appoint lesser punishments than death. But
when it is considered that a great loss makes a man and all
his family live a miserable life, and men willingly venture
their lives to save such great portions, the laws that put such
thieves to death are very justifiable. And it is observable
that when God in Moses's law appointed a mulct of money
upon thieves, it was supposed to be in such robberies where
the thief was able to restore fourfold. Add to this, that if
our laws did provide that stolen goods should be restored,
they would less need to give leave to the true man to kill the
thief. But now that he is the more likely to be undone,
because no restitution is to be made him, he may, in the case of
such great spoilings, be better allowed to be the executioner
of the sentence of the law to prevent his ruin, and to defend
his right. But it were much better if he would not at all
use this liberty.

9. (4.) But when the evil is past, if the law permits the
execution of her sentence to the injured person, it is to be
supposed that there is only an indulgence to the grief of him
that is wronged ; and therefore if he kills the injurious man,
he is indemnified in law, but not quitted in conscience. Thus
when the civil law a of old, and, at this day, the Spanish
laws permit the wronged husband to kill the adulterer, it is
lawful; that is, it is not against justice, and therefore the
law cannot punish it : but because it is extremely against
charity, his confessor ought not to absolve him without

L. Gracchus C. ad legem Juliam, da Adulteriis.



394 OF LAWS PENAL

repentance and amends ; for the Gospel does not approve it.
The reason is, because if the injury be done, the execution is
merely revenge, without the mixture of any good thing to
legitimate it. Now if the law does it by her ministers, it
is Ta|a5s/y,,a, ' an example,' iva a'XXo/ vgovoiav ffoiuvrai xal
pofiuvrai, as Demosthenes's expression is, "that others may
be afraid, and not be tempted by impunity." But if the man
does it by his private hand, there is in it less of observation
and exemplarity ; or if there were not, yet there were less
intended ; and therefore the private executing hand is not so
innocent: MJ? iauroCg exfaxovvris, saith the apostle, b "We
must not avenge ourselves :" this can hardly be reconciled
with such executions. There is only this allay in it, that if
the wronged husband can no other way prevent his dishonour
and his wife's sin or continuance in it, if the law permits it
to him, it may be supposed to be done for prevention, not for
revenge : and if it be so, as it is supposed, it hath many
degrees of excuse, and some of lawful, but nothing commend-
able ; for nothing can reconcile it to charity, because, as I
observed before, there is a soul in the way which ought
strangely much to be regarded. Nay, there are two souls :
for it was rarely said by Pythagoras, as Jamblichus relates.
ixsTffda,! de?v, r> xniveiv av^guirov' sv <j.dov ya.g
v, " It is better to suffer the injury than to
kill the man; for after death there shall be a judgment ;"
he that did the wrong, shall be punished ; and he that spared
him, shall be rewarded.

10. (5.) But if the criminal be of so desperate an impiety
that he seems incorrigible, and of a long time hath seemed
so (for that is the best way to prove him so), then it is law-
ful for a private hand to be the executioner of the public
sentence ; but he that is injured ought not to do it. Not
that it is murder, or indirectly unlawful in the precise action;
but that it can hardly be quitted from revenge ; and it will
be hard for any man to be so good as not to have just cause
to suspect himself, if he be so bad upon the mere permis-
sions of law to thrust his hand into his brother's heart. Other
persons may do it out of zeal or love of their country's good.
The civil law gives leave " exercendae publicae ultionis ad-
versus latrones, desertoresque militiae ; of executing the

b Rom. xii. 19.



AND TRIBUTARY. 395

anger of the law against fugitive soldiers, and common rob-
bers :" he that had not been robbed by them, might better
do it than he that had: for it being permitted " pro quiete
communi, for the public peace," he is a good patriot that
honestly and justly ministers to that end alone ; but he that
suffered by them had need be an angel if he does not spoil
that good end by the mixture of revenge ; and if he be an
angel, he will find a better employment than to kill a man
where it is not commanded, and where it is not necessary.

11. '(6.) Some affirm, that princes are never to be reck-
oned to be private persons, when they proceed according to
the sentence and meaning of the law, though they do proceed
* brevi manu,' as the style of the law is ; and do not proceed
by the methods and solemnities of law, by reason of disabi-
lity to do it. Thus if a man grow too hard for the laws, the
prince must send soldiers to him, not Serjeants, if the case
be notorious and it be a public sentence : and the lord
mayor of London did strike Wat Tyler, though he was not
convicted in law, nor sentenced by the judges. Upon this
account, the King of France offered to defend the killing of
the Duke of Guise: concerning which I cannot give ac-
counts, because there might be in it many secrets which [
know not. But if there wanted nothing but solemnities of
law, and there wanted power to suppress him by open force,
and that it was just and necessary that he should die, and by
law he was guilty of it, if there was any thing wanting which
should have been done, he that died was the cause of it, and
therefore to him it was to be imputed. But supposing what
these men affirm to be true (concerning which I shall affirm
nothing), yet this is very rarely to be practised, because it
is seldom lawful, if ever it be, arid not without the concur-
rence of very many particulars, and is very easily abused to
extreme evil purposes ; as in that intolerable and inhuman
massacre of Paris, which all generations of the world shall
speak of with horror and the greatest detestation. But con-
cerning the thing itself, that which the lawyers say is this,
" Generate edictum, accedente facti evidentia, habet vim latse
sententke; When a law is clear, and the fact is evident, the
sentence is already past;" and therefore some of them are apt
to say, To do the same thing in a chamber is not murder, if it
be justice when it is done upon a scaffold ; for the same



396 OF LAWS PENAL

demerit in the criminal and the same power in the supreme is
an equal cause and warranty of the execution. And since it is
cheaper to employ a physician than an army, and there is less
prejudice done to the public by such a course, since the state
of Venice kills upon suspicion, and there are some things
known which cannot be proved, and cannot be suffered, and
since we see that solemnities of law, like thin aprons, dis-
cover more shame sometimes than they hide, and give more



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