Pagina-afbeeldingen
PDF
ePub

dangerous consequence to the weal-public. Certainly, it could not but be extremely unsafe, that such a gap should be opened to the liberty of judgment, that a private breast should be opposed, with an apparent prevalence, against public convictions.

Our Casuists have beaten their brains, to find out some such evasions, as might save the innocent from death, and the judge from blood-guiltiness. Herein, therefore, they advise the judge, to use some secret means to stop the accusation or indictment; (a course that might be as prejudicial to justice as a false sentence:) to sift the witnesses apart, as in Susanna's case: and, by many subtle interrogations of the circumstances, to find their variance or contradiction. If that prevail not, Cajetan goes so far, as to determine it meet (which how it might stand with their law, he knows with ours it would not), that the judge should, before all the people, give his oath, that he knows the party guiltless: as whom he himself saw, at that very hour, in a place far distant from that, wherein the fact is pretended to be done. Yea, Dominicus à Soto could be content, if it might be done without scandal, that the prisoner might secretly be suffered to slip out of the gaol, and save himself by flight. Others think it the best way, that the judge should put off the cause to a superior Bench: and that himself should, laying aside his scarlet, come to the Bar; and, as a witness, avow upon oath the innocence of the party, and the falsity of the accusation. Or, lastly, if he should, out of malice or some other sinister ends, as of the forfeiture of some rich estate, be pressed by higher powers to pass the sentence on his own Bench, that he ought to lay down his commission, and to abdicate that power he hath, rather than to suffer it forced to a willing injustice.

And, truly, were the case mine, after all fair and lawful en· deavours to justify the innocent and to avoid the sentence, I should most willingly yield to this last resolution; yea, rather myself to undergo the sentence of death, than to pronounce it on the known guiltless; hating the poor pusillanimity of Dominicus à Soto, that passes a nimis creditu regidum, upon so just a determination; and is so weakly tender of the judge's indemnity, that he will by no means hear of his wilful deserting of his office, on so capital an occasion.

In the main cause of life and death, I cannot but allow and commend the judgment of Leonardius Lessius: but, when the question is of matters civil, or less criminal, I cannot but wonder at his flying off. In these, wherein the business is but pecuniary, or banishment, or loss of an office, he holds it lawful

b Dom. à Sot. de Jure, &c. l. v. q. 4.

c Etenim quòd homo, qui officio suo vivit, debeat tantam jacturam facere, durum creditu est. Dom. Sot. ubi supra.

d In causis civilibus et minùs criminalibus.

for the judge, (after he hath used all means to discover the falseness of the proofs, and to hinder the proceedings, if thus he prevails not) to pass sentence upon those allegations and probations, which himself knows to be unjust.

"For,"

The reasons pretended are as poor as the opinion. saith he, "the commonwealth hath authority to dispose of the estates of the subjects, and to translate them from one man to another; as may be found most availing to the public good: and here there appears just cause so to do, lest the form of public judgments should be perverted, not without great scandal to the people; neither is there any way possible to help this particular man's inconvenience and loss: therefore, the commonwealth may ordain, that in such a case, the judge should follow the public form of judicature, though hereby it falleth out, that a guiltless man is undone in his fortunes, and yet his cause known to be good by him that condemns it." Thus he *.

But what a loose point is this! Why hath not a man as true propriety in his estate, as his life? or what authority hath the commonwealth, causelessly to take away a man's substance or inheritance, being that he is the rightful owner, more than a piece of himself? When his patrimony is settled upon him, and his in a due course of law and undoubted right of possession, what just power can claim any such interest in it, as, without any ground of offence, to dispossess him? Or, what necessity is there, that the form of public judgments should be perverted, unless an honest defendant must be undone by false sentence? Or, rather is not the form of public judgment perverted, when innocence suffers for the maintenance of a formality? Or, how is the Judge other than a partner in the injury, if, for want of his seasonable interposition, a good cause is lost, and a false plea prevails?

That, therefore, which, in the second place, he alledgeth, that the subject can have no reason to complain of the judge, forasmuch as it is out of his power to remedy the case, and to pass other sentence than is chalked forth by the rule of law, might as well be alledged against him in the plea of life and death; wherein he will by no means allow the judge this liberty of an undue condemnation; neither is there any just pretence, why an honest and well-minded judge should be so sparing, in a case of life; and so too prodigal, in matter of livelihood.

As for his third reason, that the mis-judgment, in case of a pecuniary damage or banishment, may be afterwards capable of being reversed, and upon a new traverse the cause may be fetched about at further leisure; whereas death once inflicted is past all power of revocation; it may well infer, that, therefore, there should be so much more deliberation and care had,

Less. de Jure, &c. l. ii. de Judice dub. 10. Quia resp. habeat authoritatem disponendi, &c.

in passing sentence upon capital matters, than civil, by how much life is more precious and irrevocable, than our worldly substance: but it can never infer, that injustice should be tolerable in the one, not in the other. Justice had wont to be painted blindfold, with a pair of scales in her hand: wherefore else, but to imply, that he, who would judge aright, must not look upon the issue or event; but must weigh impartially the true state of the cause, in all the grounds and circumstances thereof, and sentence accordingly? To say then, that a judge may pass a doom formally legal, but materially unjust, because the case, upon a new suit, may be righted, were no other than to say, I may lawfully wound a man, because I know how to heal him again.

Shortly, therefore, whether it be in causes criminal or civil, whether concerning life or estate, let those, who sit in the seat of judicature, as they will answer it before the Great Judge of the World, resolve, what event soever follow, to judge righteous judgment; not justifying the wicked; not condemning the innocent both which are equally abominable in the sight of the Almighty.

CASE VII.

Whether, and in what cases, am I bound to be an accuser of another?

To be an accuser of others, is a matter of much envy and detestation, insomuch as it is the style of the Devil himself, to be accusator fratrum, an accuser of the brethren.

Yet not of his own brethren in evil. It was never heard, that one evil spirit accused another: but of our brethren; Rev. xii. 10. It was a voice from heaven, which called him so. Saints on earth are the brethren of the glorious spirits in heaven. It is the wickedness of that Malicious Spirit, to accuse Saints.

But, though the act be grown into hatred, in respect both of the agent and of the object; yet, certainly, there are cases, wherein it will become the Saints to take upon them the and office of accusers.

person

Accusation, therefore, is either voluntary, or urged upon you by the charge of a superior.

Voluntary is either such as you are moved unto by the conscience of some heinous and notorious crime committed, or to be committed by another, to the great dishonour of God, or danger of the common peace, whereto you are privy: or, such as whereunto you are tied, by some former engagement of vow or oath.

In the former kind, a worthy Divine, in our time, travelling on the way, sees a lewd man committing abominable filthiness with a beast. The sin was so foul and hateful, that his heart would not suffer him to conceal it: he, therefore, hastens to the next justice, accuses the offender of that so unnatural villainy: the party is committed, indicted, and, upon so reverend, though single, testimony, found guilty.

Or, if, in the case of a crime intended, you have secret but sure intelligence, that a bloody villain hath plotted a treason against the sacred person of your sovereign, or a murder of your honest neighbour, which he resolves to execute; should you keep this fire in your bosom, it might justly burn you.

Whether it be, therefore, for the discovery of some horrible crime done, or for the prevention of some great mischief to be done, you must either be an accuser, or an accessary.

The obligation to accuse is yet stronger, where your former vow or oath hath fore-engaged you to a just discovery. You have sworn to maintain and defend his Majesty's royal person, state, dignity; and to make known those, that wilfully impugn it: if now, you shall keep the secret counsels of such wicked designments, as you shall know to be against any of these, how can you escape to be involved in a treason, lined with perjury?

These are accusations, which your conscience will fetch from you, unasked. But if, being called before lawful authority, you shall be required, upon oath, to testify your knowledge, even concerning offenders of an inferior nature; you may not detract your witness, though it amount to no less than

an accusation.

Yet there are cases, wherein a testimony, thus required, tending to an accusation, may be refused: as in case of duty, and nearness of natural or civil relation; it were unreasonably unjust for a man to be pressed with interrogations, or required to give accusatory testimonies, in the case of parents, or children, or the partner of his bed: or, if a man, out of remorse of conscience, shall disclose a secret sin to you formerly done, in a desire to receive counsel and comfort from you, you ought rather to endure your soul to be fetched out of your body, than that secret to be drawn out of your lips: or, if the question be illegal; as those, that tend directly to your own prejudice; or those, which are moved concerning hidden offences, not before notified by public fame, or any lawful ground of enquiry, which therefore the judge hath no power to ask: in these cases, if no more, the refusal of an accusation, though required, is no other than justifiable.

But, where neither the conscience of the horridness of a crime done, nor prevention of a crime intended, nor duty of obedience

to a lawful authority, nor the bond of an inviolable pre-engagement, call you to the Bar; it is not a more uncharitable than thankless office to be an accuser.

Hence it is, that delators and informers have, in all happy and well-governed states, been ever held an infamous and odious kind of cattle. A Tiberius and a Domitian might give both countenance and reward to them, as being meet factors for their tyranny: but a Vespasian, and Titus, and Antoninus Pius, and Macrinus, or whatever other princes carried a tender care to the peace and welfare of their subjects, whipped them in the public amphitheatre; and abandoned them out of their dominions, as pernicious and intolerable.

And, as these mercenary flies, whether of state or of religion, are justly hateful, next to the public executioners; so, certainly, those busy spirited men, which, out of the itching humour of meddling, run from house to house, with tales of private detraction, may well challenge the next room in our detestation. This, together with the other, is that, which God so strictly forbids in his Law; Lev. xix. 16. Thou shalt not go up and down as a tale-bearer amongst thy people; neither shalt thou stand against the blood of thy neighbour: I am the Lord: a practice, which wise Solomon, though a great king, and, as one would think, out of the reach of tongues, cries down with much feeling bitterness; Prov. xviii. 8. The words of the talebearer are as wounds, and they go down into the innermost parts of the belly: no less than five several times in his divine Proverbs, inveighing sharply, as if himself had been stung in this kind, against these close, backbiting calumniations.

Shortly, then, accuse, when you are forced, either by the foulness of the fact, or the necessity of your duty: otherwise, reserve your tongue for better offices.

CASE VIII.

Whether a prisoner, indicted of a felonions act which he hath committed, and interrogated by the judge concerning the same may stand upon the denial, and plead, "Not guilty.'

[ocr errors]

THE Casuists vary; and, out of respect to their own laws, are much perplexed in their resolutions: making the great scruple to be in the juridical interrogations, which, if the judge have not proceeded in the due form of law required in such cases, may warrant the offender's denial: and, secondly, making difference of the quality of the offence, and danger of the punishment: which, if no less than capital, may, say they ", give just

Prov. xi. 13. xx. 19. xxvi. 20, 22.

Rodriguez. Tract. Ordinis Judicialis. cap. 10.

« VorigeDoorgaan »