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scandal than they remove; these men are more confident
than I am: for they dare warrant this course which I dare
not. But he that will adventure upon this, must take care
that it be done, 1. By a competent authority; 2. Uponajust
cause ; 3. For a great necessity ; 4. According to the intent
and meaning of the law; 5. It must be ' in summo et rnero
imperio,' by one that is absolute and supreme ; 6. It must be
upon notoriety of fact; 7. When there is no scruple of law;

8. And if after all this there be no scruple in conscience ;

9. Nor yet any other means of securing the public ; 10. And
the thing have in it as great charity to the public, as there is
in it justice to the particular; 11. And that the war be not
'justum belluni,' that is, between supreme powers; 12. Nor
yet any treaty or promise, faith or covenant, to the contrary
between the supreme and the inferior offending; 13. Nor yet
there be a scandal of greater mischief than can be procured
by the unsolemn proceeding; 14. Nor is done * refragante
judicio procerum, et sententiis juris prudentum,' against the
earnest advice of prudent and grave persons,' which, if it
happen, will arrest the resolution, and give check and con-
sideration to the conscience : then it is supposed by many,
that there may be reason enough to forbear what cannot be
used, that is, the solemnities of law, which are the methods of
peace, nor to be expected in a state or time of war. And by
this time it will be so hard to do it justly, that it will be bet-
ter to let it alone. For after all these cautions and provisos
it is not permitted to assassinate or privately to murder the
criminal, but to proceed by open force or by avowed manners
of justice, though they be not solemn, and the common ways
of peace; that is, they must be owned in public, and asserted
by law, either antecedently or 'ex post facto.' An example
of the first way is frequently seen in France ; where the
fugitives of law are proceeded against in their absence, and



AND TRIBUTARY. 399

executed ' in effigie ;' and in the states of Italy against the
banditti: and of the second way examples have been seen
in the manifestos of some princes, when they have been put
to such extrajudicial and private ways of animadversion.
But these things happen not but in such places where prin-
ces are more absolute, and less Christian, or that the subject
transgresses by power.

12. (7.) Upon the like account it hath, in some ages of
Christianity itself, but in many ages of gentilism, been per-
mitted that by single duel men prove their innocence and
oppress the supposed criminal :



Puroque pioque duello



Quferendas rea censeo



said one of the Roman senators to Ancus Martius. Now
concerning this I shall not need to say much; because now
long since all Christian princes and states, and all churches
and ecclesiastical persons, have condemned it as a grievous
crime, upon these two accounts : 1. Because it is a tempting
God by ways which he hath never allowed, it is a lottery that
he never gave warrant to : and upon this account it was, that
Pope Nicolas I. c forbade the Emperor Lotharius to try his
wife's suspected chastity by the combat of two champions :
" Cum hoc et hujusmodi sectantes, Deum solummodo ten-
tare videantur;" and to the same purpose Pope Celestine d
and some others did forbid it. 2. Because the innocent per-
son is exposed to equal danger with the criminal, and hath
been oftentimes oppressed; as it happened in the case of
William Catur, e an armourer in Fleet Street, who, being by
his servant John David falsely accused of treason, was yet
slain in Smithfield by his perjured adversary: and then the
people have accepted the event as a Divine testimony, which
in this case being to a lie and to the false part, must needs be
infinitely dishonourable to God. But if it were not for these
and some other evil appendages, and if the innocent person
were sure to prevail, and the law made the private hand the
minister of justice, who only can tell the secret, and there-
fore is the surest judge, there is no peradventure it might as
well be done by that hand as by any other. But this cannot

c Caus. ii. qu. 5. c. 22. Monomachiam. d Decret. tit. de Vulgari Purgat
Stowe's Aunals, 25 of Henry.



398 OF LAWS PENAL

be reduced to practice at all ; but in the whole conjunction
of affairs is highly criminal and intolerable. In Spain we
find that a duel was permitted between two eminent persons
(' los infantes de lara,' the Spaniards call them) only upon
the accusation of an injury done to some ladies, the daugh-
ters of Rodrigo de Bibar ; and the victory was gained by him
that was innocent : and another by the men of Zamora in
the case of the death of King Sanctus ; and quickly they
found advocates and defenders. And Vasquez affirms it may
as well be permitted by law, as that an injured husband
should kill the adulterer. But besides the reasons formerly
alleged against such private executions of an uncertain sen-
tence, because they have no foundation in justice or charity,
neither in public nor private good, they are deservedly
banished from all Christian countries.

13. But this is to be understood only of judicial duels,
whether criminal or civil ; for as for duel extrajudicial and
private, it is so unjust, so uncharitable, and so unreasonable,
so much against all laws of God and man, so infinitely
against the piety of him that survives it, so infinitely against
the hopes of him that dies in it, that nothing can excuse it:
but even duels which are permitted by laws, ought not to be
so, and are not permitted by religion ; excepting only when the
duel is a * compendium' of war, and is designed to do justice,
and to prevent the greater issues of blood.

14. Thus the Romans and Albans determined their wars
by the fight of three champions of each side; and the Curi-
atii being subdued by Horatius Codes, the city Alba came
into subjection to Rome. David and Goliath fought for their
respective countries: but the duel did not determine it di-
rectly, but only discouraged the conquered party. Upon
the same account Clovis, the first Christian king of France,
offered to fight with Alaric, prince of the West Goths ;
" Nobilissimo pari fortunam utriusque gentis decreturo,"
said Paulus JEmilius: and Guicciardini f tells, that when
the French and Italian armies were ready to join battle, the
fortune of the day was committed to thirteen champions on
each part. Camden 5 reports, that when the Saxons and
Danes grew weary of the so great effusion of blood caused by
their daily wars, " misso in compendium bello, utriusque

' Lib. v. Hist. Ital. * In Dobunis.



AND TRIBUTARY. 399

gentis fata Edmundo Anglorum et Canute Danorum regibus
commissa fuerunt, qui singulari certamine de sutnma imperil
in hac insula depugnarunt." Edmund and Canutus fought
in a little island by Gloucester, and drew the war into a
* compendium,' and saved the lives of their subjects by
hazarding their own. William, duke of Normandy, offered
this to Harold before the battle in Sussex ; and King John
of England to Lewis of France, by deputed champions. And
Richard II. of England challenged Charles VI. of France
concerning the title of the French crown. And Pope Mar-
tin allowed the duel between Charles of Anjou and Peter of
Arragon to determine the question concerning the kingdom
of Sicily. These indeed are great examples, and are then
only just when the war is just, and on that side only on which
it is just. " Haec est necessitas quae bellum justificat (saith
Baldus h ) cum ad bellum extreme loco confugitur." 'When
the war is necessary and the case is extreme, the necessity
makes it just, when the contrary evil is intolerable:' and when
things are come to this pass, then it is true what Bodinus
says; " Non interest quo numero adversus hostes decernatur,
It matters not by how few the war be ended." Such a duel
is a just war, as all war anciently was called a duel,

Grscia Barbariae lento collisa duello. 1

All Greece and Barbary fought a duel ; it is ' duarum partium
congressus,' the contention of two armies as well as two sin-
gle persons : and that the words are synonyma we find in
Varro, k Festus, 1 Plautus, and P. Merula; n but concerning
the thing itself, who please to see more instances and prece-
dents, more arguments and verifications of it, may, at his
leisure, find many particulars in Frisius, Ayala, p Bocerus, q
Alciat/ Bodinus, 5 Beuther, 4 and Albericus Gentilis."

I have now described the prohibitions of private execu-
tions, together with the cases in which they have been or
may be permitted. The next question is upon the latter part
of the rule.

h Bald. v. Concil. 493. Herat Epist. lib. i. ep. 2. 7.

k De Lingua Latina. l In Verb. Duellum.

m Amphitruo. In Lib. i. Aimal. Enn.

De Rep. lib. i. c. 26. P Lib. i. c. 3.

1 Lib. ii. c. 8. r De Singul. Certain, c. iii.
De Rep. lib. vii. c. 4. ' Conclus. 76.

De Jure Belli, lib. i. c. 3.



400 OF LAWS PENAL

Whether it be lawful for a Christian to require of the Magis-
trate that his offending Brother may he punished?

15. If the injured person be designed only to punishment,
IK j^efftus VVP/xagdfcu cc/^arog, and Bi' ogsfyv avriXvirfiaiug, " out
of anger and a desire to be revenged," there is no question
but it is infinitely unlawful. " Render not evil for evil," and
divers other prohibitive words of our blessed Lord, cannot
mean less than the forbidding of revenge, though obtained
and desired from the hand of justice ; for although the ma-
gistrate is bound to do it, if required, yet he that requires
for vengeance' sake, is of an unchristian spirit : and this was
observed by Dion in Plutarch, Tb dmr//**ff?<&cu r$ vgoadixsTv
vo/i^i dixaiongov ufia^ai tpuffu yivopivov avb ftia,; a<&Vias, "To
receive and require amends from the law is more just than
that injury against which justice is required;" but it proceeds
from the same weak principle; and therefore it is fit for none
but fools and weak persons :

. Quippe minuti

Semper et infirmi est animi esiguique voluptas
Ultio. Continue sic collige, quod vindicta

Nemo magis gaudet, quam femina : *

or rather it becomes not such persons ; for nothing can be-
come them but to leave their folly and to grow wiser ; for it
is " caecus et irrationalis furor," as Lactantius calls it : ' in-
humanum verbum est,' saith Seneca, it is unreasonable, and
" inhuman," and brutish : Oix ip?j5o/40a, u fesTrora, ripugia.$
s%&gou } dfdifta'y/Aevoi tfgbf ruv heuv vopuv aKSgwTOTaf)g/V, said the
Jews of Alexandria ; " We are not delighted in taking
revenge against our enemies, because, by the laws of God,
we are taught to have compassion on men." And therefore
is this much more to be observed in Christianity, where we
are all members one of another, united to Christ our head ;
and therefore we should comport ourselves as members of
the same body : concerning which Cassiodore says prettily,
" Quod si manus una casu aliquo forte laedat alteram, ilia
quse laesa est non repercutit, nee se erigit in vindictam ; y
If one hand strikes the other, it is not stricken again, neither
doth the other think to be revenged ;" as knowing it was too
much that one was smitten.

* Juvenal, xiii. 189. Ruperti. 2. ed. p. 258. i De Amicitia.



AND TRIBUTARY. 401

16. (2.) It is lawful for a Christian to require of the ma-
gistrate to punish him that is injurious, if he justly fears a
future and intolerable evil ; for then it is but a calling to the
law for a just defence, without which the magistrate should
bear the sword in vain. Clemens Alexandrinus defines ripta-
giav, or ' punishment' (meaning that which is just, and in
some cases reasonable to be required) to be xaxov dvra^odo-
ffiv 11$ ri> roy riftuoovvroi; ffv/J,<pegov awrpfco/iEvjjv, " a return of
evil," not for the vexing of the injurious, but " for the relief
or commodity of the complainer." But if it be that which
Aristotle defined it, ro\J toioiJvros evtxa, 1m avaTXTjgw^T-, " for
the satisfaction of him that punishes," that is, thaj; he may
have the pleasure of revenge, then it is intolerable. And
therefore it must be always provided, that this appeal respect
the future only, and not that which is past ; for that is re-
venge, and this is caution and defence.

17. (3.) In all repetitions of our rights which are per-
mitted to Christians before Christian judges, it is not lawful
for Christians to take any thing for amends beyond the real
loss or diminution of good ; for that is a retribution of evil,
which, at no hand, is permitted to a Christian. The Jews
might receive fourfold ; Christians must be content with
simple restitution of their loss and real damages.

18. (4.) Christians must not go to law but upon very
great cause ; and therefore some of the heathens, Musonius,
Maximus Tyrius, and others, would not allow vfigeus dixw,
' any amends at all for reproachful or disgraceful words.'
And the Christians, who neither were nor ought to be behind
them, desired not their calumniators to be punished. So
Justin Martyr ; " We will not those to be punished who do
calumniate us ; their own perverseness and ignorance of good
things is enough already of calamity:" Mqds (LIK^OV aptiZifffai
(iqdsva (3o-jX6(&evot, u$ o xotivbs vopcdtTris ex.s'h.tvffiy " A Christian
is commanded by Christ our new lawgiver not to be revenged,
no, not a little." ** Abstinere a litibus etiam plusquam
licet," said Cicero ; " We must abstain from suits of law,
even far beyond our convenience." And in the Primitive
Church they took all honest things for commandments,
and therefore did not think it lawful at all to go to law ;
Ou d/xaora/ ro?$ agcraou<r/, saith Justin Martyr of them,
" They do not go to law with them that rob them." But

VOL. XIII. D D



402 OF LAWS PENAL

that it is lawful, 2 the public necessities are a sufficient argu-
ment ; and yet men for want of charity make more neces-
sities than needs ; for if charity be preserved according to
its worthiest measures, there would be no suits of law, but
what are not to be avoided ; that is, there would be none
for revenge, but some for remedy and relief. And this was
that which Musonius 3 said ; ' AveteMtgov xai van <piX6dixov xa-
xyyogias Sixdfyt&ui, " It is not ingenuous to be running to
law upon every provocation, though by real injury :" M^re
agxeiv Xoidogiav, ^rz a.pvvte'Sa.i roug Xo/Sogoui/raj, said Pytha-
goras, " A wise man will neither revile his neighbour,
nor sue him that does." For " good men (said Metellus
Numidicus) will sooner take an injury than return one :"
and if we read the sermon of Maximus Tyrius, b <xtg) rov,
rlv adixqaavra avradixqr'eov ; " whether it may be permitted
to a good man to return evil to the injurious?" it will soon
put us either to shame, or at least to consider whether there
be no command in our religion, of suffering injuries, of pa-
tience,, of longanimity, of forgiveness, of doing good for evil ;
and whether there be not rewards great enough to make
amends for all our losses, and to reward all our charity ; and
whether the things of this world cannot possibly be despised
by a Christian ; and whether peace and forgiveness do not
make us more like to God and to the holy Jesus. Certainly
if a Christian be reproached, railed at, spoiled, beaten, mu-
tilated, or in danger of death, if he bears it patiently and
charitably, he may better say it than Achilles did in Homer : c



tia 3



" I hope for this charity to be rewarded by God himself." If
a man have relations, and necessities, and obligations, by
other collateral duties, he must, in some cases, and in
many more he may, defend his goods by the protection of
laws, and his life and limbs ; but in no case may he go to
law to vex his neighbour : and because all lawsuits are vex-
atious, he may not go to law, unless to drive away an injury
that is intolerable, and that is much greater than that which
is brought upon the other.

19. (5.) When a Christian does appeal to Christian

1 Vide Great Exemplar, part ii. Apud Lysiam.

b Sera. ii. Davis, p. 18. c H. ^ go4.



AND TRIBUTARY. 403

judges for caution, or for repetition of his right, he must do
it without arts of vexation, but with the least trouble he can ;
being unwilling his neighbour should suffer any evil for what
he hath done. "Omnia prius tentanda quam bello expe-
riendum, He must try all ways before he go to this;"
and when he is in this, he must do it with as little collateral
trouble to his adversary at law as he can. To this belongs
that of Ulpian ; " Non improbat praetor factum ejus, qui tanti
habuit re carere, ne propter earn ssepius litigaret. Haec enim
verecunda cogitatio ejus, qui lites execratur^ non est vitupe-
randa." A man must be modest and charitable in his neces-
sary suits at law : not too ready, not too greedy, not passion-
ate, not revengeful ; seeking to repair himself when he must
needs, but not delighting in the breaches made upon his
neighbour.

20. In order to this, it would prevent many evils,, and
determine many eases of conscience, or make them easy and
few, if evil and rapacious advocates, that make a trade, not
to minister to justice, but to heap up riches for themselves,
were not permitted in commonwealths to plead in behalf of
vicious persons and manifest oppressors, and in causes noto-
riously unjust. Galeazzo Sforza, duke of Milan, being told
of a witty lawyer that was of evil employment,, a patron of
any thing for money, employing his wit to. very evil pur-
poses, sent for him, and told him that he owed his painter a
hundred crowns, and was not willing to pay him ; and there-
fore asked him if he would defend his cause, in case the
painter should require his money at law. The advocate pro-
mised him largely, and would warrant his cause ; which when
the Duke heard from his own mouth, he caused him to be
hanged. The action was severe, but strangely exemplary. I
have nothing to do with it, because I am not writing poli-
tics, but cases and rules of conscience : but I have mentioned
it as a great reproof of all that which makes causes and suits
of law to be numerous ; which is a great sign of corruption
of manners, if not of laws, in any place ; but amongst
Christians it is a very great state of evil. And therefore
Charles IX. of France made an edict, that whosoever began
a suit of law should pay into the finances two crowns ;
which if his cause were just, he should lose ; if it were un-
just, the law would sufficiently punish him besides ; but even



404 OF LAWS PENAL

upon a just cause to go to law, is not the commendation of
Christian justice, much less of charity ; Oix s7sv &v ton cro/.?"-
/, OTOU ToXXa/ pev Mxai sn dXX^Xo/$ eJgv, dXX OTOU u; on
xai oX/y/tfra/- " Then charity is best preserved
amongst citizens, not when there are most decisions of causes,
but when the suits are fewest."



RULE VII.

// is not lawful to punish one for the Offence of another ;
merely, and wholly.

1. " QUOD tute intristi, tibi exedendum est," said the co-
medy ; a " As you knead, so you must eat ;" and he that eats
sour grapes, his teeth only shall be set on edge. This is the
voice of nature, of God, of right reason, and all the laws and all
the sentences of all the wise men in the world, and needs no
further argument to prove it. But there are in it some cases
which need explication. 1. Concerning persons conjunct
by contract; 2. In persons conjunct by nature; 3. In them
which are conjunct by the society of crime. For in all these
one is punished for the fault of another ; but how far this can
be just and lawful, are useful inquiries in order to the con-
duct of conscience.

2. The first inquiry is concerning persons conjunct in
contract ; such as are, pledges in war, sureties for debt, un-
dertakers for appearance, and the like. Concerning pledges
in war, it hath been sometimes practised in warlike nations,
to put them to death when their parties have broken their
promise. TheThessalians killed two hundred and fifty ; the
Romans, three hundred of the Volsci ; and this they might
do by the law of nations ; that is, without infamy and re-
proach, or any supposed injustice ; they did practise it on
either side. But the thing itself is not lawful by the law
of God and nature, unless the pledgers be equally guilty of
the crime. When Regulus was sent to Rome to get an
exchange of prisoners, and himself, upon his promise, was
engaged to release them, or to return himself; when he per-
Phonn. act. 2. sc. 1, 4. Mattaire, p. 263.



AND TRIBUTARY. 405

suaded the Romans not to release the African prisoners, the
Carthaginians had reason to account him guilty as his coun-
try. But when the pledges are not, it is against the law of
nature to put to death the innocent. For either the pledges
are violently sent in caution against their wills or with them.
If against, then the wrong is apparent, and the injustice
notorious. If with their will, it is to be considered it is
beyond their power : for "nemo membrorum suorum dominus
videtur," saith the law ; b and therefore it is, that in criminal
causes, where corporal punishment is inflicted, no man is
permitted to be surety for another, but in civil causes he
may ; because no surety may lawfully be put to death for the
principal, as is noted by the gloss : c the reason is plain;
he that is surety for another, can engage nothing of which
he is not the lord, and over which he hath no power ; and
therefore he cannot lay his body, his life, or limb, at stake.
No man hath power to engage his soul for the soul of another,
that is, so as to pay his soul in case of forfeiture to acquit
another ; for it is not his, it is another's ; it is his who hath
purchased it and is lord over it, that is Christ : and so is our
body redeemed by the blood of Christ, "for ye are bought
with a price ; therefore glorify God in your body and in
your spirit, which are God's," saith the apostle . d Now this
is so to be understood, not that one man may not feel the
calamity which the sin of another can bring upon him; but
that the law cannot inflict corporal punishment upon any
relative, so as the criminal shall escape, and the law be satis-
fied, as if the offending person had suffered. If a father be
a traitor, the law may justly put him to death, though the
wife will die with sorrow : but the law cannot put the wife
to death, or the son, and let the husband go free. One rela-
tive may accidentally come into the society of another's
punishment, not only if they be partners of the crime, but
though one be innocent : but one cannot pay it for the other
and acquit him. This, I say, is to be understood in corporal
punishments.

3. But in pecuniary punishments, the case is otherwise.
For a man is lord of his money, and may give it away, and
therefore may oblige it ; and he that is surety for another's

b L. liber ff. ad legem Aquiliam. c In cap. Cum Homo, 23. q. 5.

d 1 Cor. vi. 20.



406 OF LAWS PENAL

debt, gives or lends it to him that, is principally obliged ; and
therefore it is just to take it, and the surety hath power to do
it. But by the way it is observable, that the surety can only
oblige his money, or himself to the payment of his money :
but when the creditors had power to torment the insolvent
debtors, no man could give himself a surety directly for that
torment ; but by making himself a debtor, he did by conse-
quence make himself criminal if he did not pay, and so
might with as much justice be tormented as the principal
debtor.

4. But the whole business is unreasonable as to this
instance, and therefore the inquiry is soon at an end, and the
case of conscience wholly different ; for in this particular it
is not only unlawful to punish the surety with corporal
punishment, but even the principal that is insolvent is to be
let alone. If he fell into poverty by his prodigality, the law
may punish that as she please ; or if he intends to defraud
the creditor, he may be punished, or constrained to pay ; but
if he fell into poverty Jx rov eu^^-MTog xa/ ou ^atfu/i/a,
as Justinian's expression is, " by unavoidable accident, not
by impious courses," it is against justice and charity to put
him to trouble.

5. Concerning which, though it be not pertinent to this
rule, but here only very well occasioned, I shall give this
short account, that at once I may be wholly quit of this par-
ticular. In the laws of the Twelve Tables, it was permitted
to creditors to imprison, to torment, to put. their insolvent
debtors to death ; and if there were many of them, they might
cut the body in pieces, and every man go away with his



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