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 condemned 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 changing 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 Thus by the laws ecclesiastical, which were anciently of force in England, and are not yet repealed, "notorius percussor clerici," "he that openly or manifestly strikes a bishop or priest," is, ipso jure,' excommunicate; and to this sentence the guilty person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 sentences of the declaring actions to be null, or privileges void." For in these cases, though the judge do take into his cognizance 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 difference 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

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 respective 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 executes the sentence upon himself, before the judge calls others into testimony and observation of the sentence. But though the sentence 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 saying of Cicero"; 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 particularly 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 ecclesiastical 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 consumes. 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 à 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

m" Vere dicitur, magistratum legem esse loquentem; legem autem, mutam magistratum." De Leg. 3. c. 1. §. 2. Goerentz, page 217. (J. R. P.)

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 punishment contained in the sanction of the law: which thing because 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", divers instances 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, quæ in præcedenti capitulo ordinata sunt; et quod non accipient munera, et quod solvent pœnas, si in eas inciderint, ad quas ex nunc eos condemnamus, ità ut sint obligati in foro conscientiæ ad solvendum eas, absque hoc quod sint ad illas condemnati." And the same also is, a little after °, 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 conscience 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 conscience, 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. 2. Ordinat. Regal. tit. 9. lib. 1.

• Ibid. tit. 15.

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 'donec 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' incurred 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 Innocentius P, describing the order for an archbishop's visitation of his own, and the diocesses of his suffragan bishops; forbidding 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 contrà præsumptum, recipiens maledictionem incurrat, à qua, nunquam nisi duplum restituat, liberetur;"" He that shall presume to do otherwise, and receive 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 sentence is set down in the law in words of the present or preter tense, it concludes the sentence to be 'ipso facto' incurred; 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 'Excommunicamus,' 'Anathemate innodamus,' 'We do deprive him of all rights and offices,' &c. for if the judge, using the like words, passes a sentence by virtue of those words, so does the law, there being the same reason, the same authority, the same purpose, signified by the same form of words. But if the words be of the present or past time, and yet not immediately damna

4. cap. Romana, sect. Procurationes, de Censibus, lib. 6.

Cap. Cæterum, et cap. Nonnulli de Rescriptis. cap. Novit. in fine de his quæ fiunt a Prælato.

tory, they do imply the sentence to be made afterward; as ' decernimus,'' 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 privatum dominio bonorum:" then the case is evident.

29. (5.) Of the same consideration it is, when the sentence 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 declared 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 custom. This note I have in A. Gellius", "Verbum esse et erit, quando per sese ponuntur, habent atque retinent tempus suum; quum vero præterito jugantur, vim temporis sui amittunt, et in præteritum contendunt." If these words be not altered, they signify just by themselves; "est" or "erit excommunicatus," 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 excommunicandus;' 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 shows that the declaration of the judge is to be expected; as in "est excommunicandus," that

r Lib. 17. cap. 7. Oiselii, p. 938,