CHAP. II.

OF LAWS PENAL AND TRIBUTARY.

RULE I.

It is lawful for Christian Magistrates to make penal Laws, not only pecuniary and of Restraint, but of Loss of Member and Life itself.

1. WHATSOEVER is necessary, is just; that is, that must be done, which cannot be avoided: and therefore the power of the magistrate in punishing the transgressors of their laws of peace, and order, and interest, is infinitely just 9; for, without a coercitive power, there can be no government, and without government there can be no communities of men; a herd of wolves is quieter and more at one than so many men, unless they all had one reason in them, or have one power over them. "Ancus Rex primus carcerem in Romano foro ædificavit, ad terrorem increscentis audaciæ," says Livy': "King Ancus seeing impiety grow bold, did erect a prison in the public market." When iniquity was like to grow great, then that was grown necessary. And it is observed that the Macedonians call death Aávoç from the Hebrew word Dan, which signifies a judge, as intimating that judges are appointed to give sentences upon criminals in life and death. And therefore God takes upon himself the title of a king and a judge, of a lord and governor; and gives to kings and judges the title of gods, and to bishops and priests the style of angels.

2. But here I will suppose, that magistracy is an ordinance of God, having so many plain scriptures for it: and it being by St. Paul' affirmed, that "he beareth not the

q Nec quisquam sibi putat turpe, quod alii fuit fructuosum. Patercul. lib. ii. cap. 3. §. 4. Krause, p. 72.

The original words of Livy are,—“Ingenti incremento rebus auctis, quum in tanta multitudine hominum discrimine recte an perperam facti confuso, facinora clandestina fierent, carcer ad terrorem increscentis audaciæ, media urbe, imminens foro, ædificatur." i. cap. 33. §. 8. (J. R. P.)

1 Tim. vi. 15. Psal. lxxxii. 6.

t Rom. xiii.

sword in vain," and that they who have done evil, ought to fear; and of himself he professed that if he "had done aught worthy of death, he did not refuse to die;" and a caution given by St. Peter, that Christians should take care that "they do not suffer as malefactors;" and it being made a note of heretics, that they are traitors,' that they are murmurers,' that they despise dominion,' that they speak evil of dignities;' and that we are commanded to "pray for kings and all that are in authority," for this reason, because they are the appointed means that men should live a peaceable and godly life;' for piety, and peace, and plenty too, depend upon good governments: and therefore Apollo Pythius told the Lacedemonian ambassadors, that, if they would not call home Plistonax their king from banishment, and restore him to his right, they should be forced to till their ground with a silver plough"; that is, they should have scarcity of corn in their own cities, and be forced to buy their grain to relieve the famine of their country: for so the event did expound the oracle; they grew poor and starved, because they unjustly suffered their king to live in exile. Add to these, that we are often commanded to "obey them that have the rule over us;-to be subject to every ordinance of man ;-that rulers are not a terror to good works, but to the evil;”—and many more to equal purposes.

3. Neither ought the precept of charity and forgiveness, which Christ so often, so earnestly, so severely presses, evacuate the power of princes. For the precept of forgiving offenders, does not hinder parents from correcting their offending children; nor masters from chastising their rebellious servants; nor the church from excommunicating them that walk disorderly; these things rely upon plain scriptures, and upon necessity, and experience; and they do evince thus much without any further dispute, that some punishment may stand with the precept of forgiveness; or at least, if he who is injured, may not punish without breach of charity, yet some one else may. And if it be permitted to the power of man to punish a criminal without breach of charity, the power of the magistrate must be without all question; and that such a power can consist with charity, there is no doubt, when we remember that the apostles themselves, and the pri" 'Apyupéa sidang siλážew. Thucyd. v. 16. Beck, vol. 1. pag. 712.

mitive churches, did deliver great criminals over "to the power of Satan, to be buffeted, even to the destruction of the flesh, that their souls might be saved in the day of the Lord." St. Paul delivered Elymas to blindness, and St. Peter gave Ananias and Sapphira to a corporal death.

4. But the great case of conscience is this: Although all punishments less than death may, like paternal corrections, consist with charity (for they may be disciplines and emendations), yet in death there is no amendment; and therefore to put a man to death flagrante crimine,' before he hath mortified his sin, or made amends for it; that is, before it is pardoned, and consequently to send him to hell,-is the most against charity in the world, and therefore no man hath power to do it: for God never gave to any man a power to dispense justice to the breach of charity; and that dispensation which sends a man to hell, is not for edification, but for destruction.

5. To this I answer, (1.) That it is true that whatsoever is against charity, is not the effect of justice; for both of them are but imitations and transcripts of the divine attributes and perfections, which cannot be contrary to each other. But when the faults and disorders of mankind have entangled their own and the public affairs, they may make that necessary to them, which, in the first order and intention of things, was not to be endured. Thus we cut off a leg and an arm to save the whole body; and the public magistrate, who is appointed to defend every man's rights, must pull an honest man's house to the ground, to save a town or a street: and peace is so dear, so good, that for the confirming and perpetuity of it, he may commence a war, which were otherwise intolerable. If therefore any evil comes by such ministries of justice, they who introduced the necessity, must thank themselves. For it is necessary it should be so: though it be but a suppositive and introduced necessity; only he that introduced it, is the cause of the evil; not he, that is to give the best remedy that he hath.

6. (2.) No man is to answer for an accidental effect that is consequent to his duty: "In omni dispositione attenditur quod principaliter agitur," says the law; "I am to look to what is principally designed, not what accidentally can hap* Lib. Si quis nec causam, ff. si certum petatur.

pen." If I obey God, it is no matter who is offended. If I see that my neighbour will envy me for doing good, and his eye will be evil because I am good,-I am not to omit the good, for fear his soul should perish; when my good is rather apt to do him good than evil: he is to answer for it, not I, for nothing that I do, makes him evil; he makes himself so by his own choice. There are many men, that turn the grace of God into wantonness, and abuse the long-suffering and patience of God, and turn that into occasions of sin, which God meant for the opportunities and endearments of repentance; but if God should leave to be gracious to mankind in the same method, out of charity and compliance with the interest of the souls of such miserable persons, as they would be never the better, so the other parts of mankind would be infinitely the worse.

7. (3.) It is true that charity is the duty of every Christian; but as all Christians are not to express it in the same manner, so there are some expressions of charity which may become some persons, and yet be the breach of another's duty and some may become our wishes, which can never be reduced to act; and because that is all we can do, it is all we are obliged to do. When Vertagus was condemned to die for killing the brother of Aruntius Priscus, the poor father of the condemned man came and begged for the life of his miserable son; but Priscus out of the love of his murdered brother, begged with the same importunity that he might not escape; and both their effects were the effects of charity. The charity of a prelate and a minister of religion is another thing than the charity of a prince. A mother signifies her love one way, and a father another; she, by fondness and tender usages,-he, by severe counsels and wise education; and when the minister of religion takes care concerning the soul of the poor condemned man, the prince takes care, that he shall do no more mischief, and increase his sad account with God. The prince and the prelate are, both of them, curates of souls and ministers of godliness; but the prince ministers by punishing the evil doer, and rewarding the virtuous,-and the prelate by exhortation and doctrine, by reproof and by prayer, by sacraments and discipline, by the key of power and the key of knowledge. The effect of this consideration is this; that the magistrate,

by doing justice in the present case, does not do against charity because he does minister to charity in the capacity and proper obligation of a magistrate, when he does his own work, which being ordained for good and not for evil, the office is then most charitable and most proper for him, when he ministers to charity in his own way that God hath appointed him. By his justice he ministers to the public good, and that is his office of charity. That is his work; let others look to their share.

8. (4.) The cutting off a malefactor is some charity to his person, though a sad one; for besides that it prevents many evils, and forces him to a speedy recollection, and a summary repentance, and intense acts of virtue by doubling his necessity; it does also cause him to make amends to the law; and that oftentimes stands him in great stead before the tribunal of God's justice," paulum supplicii satis est Patri ;" God is sometimes pleased to accept of a small punishment for a great offence; and his anger many times goes not beyond a temporal death, and the cutting off some years of his life.

9. (5.) That which concerns the magistrate is, that he be just and charitable too. Justice of itself is never against charity; but some actions of supposed charity may be against justice. Therefore the magistrate in that capacity is tied to no charity but the charity of justice, the mercies of the law; that is, that he abate of the rigour as much as he can, that he make provisions for the soul of the criminal, such as are fit for his need, that if he can delay, he do not precipitate executions. In what is more, the supreme, the lawgiver, is to take care, and to give as much leave to the ministers of justice as can consist with the public interest. For here it is that there is use of that proposition, that all men are not tied to all the exterior kinds and expressions of charity, but as they are determined accidentally. It will not be supposed that the judge is uncharitable if he do not preach to the condemned criminal; or if he do not give him money after sentence, or visit him in prison, or go to pray with him at the block; these are not the portions of his duty but as his justice requires him to condemn him; so his charity exacts of him as judge nothing but the mercies of the law.