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is, “he is to be excommunicated,” viz. by the sentence of his ordinary judge: but "erit infamis,” or “erit excommunicatus,” implies no man's action at all, but supposes the thing finished without any more to do; and then comes in the rule of Nigidius in A. Gellius before spoken of. Infamis' sig. nifies presently, that is, he shall be so from the doing the crime, and excommunicatus' signifies present or past, and therefore by it the future tense shall be altered, and therefore the sentence presently incurred. But concerning this particular, who pleases to be critical and curious in minutes may delight himself by seeing seventy-five fallencies, and alterations of cases by the variety of tenses expressed in words of law, in Tiraquel, in his excellent and large commentaries', in the interpretation of the word 'revertatur.' For my own part, I am content to assign such measures as are sure, plain, easy, and intelligible. “Nobit non licet esse tam disertis."
30. (6.) The sentence of the law does presently oblige the conscience, if it be expressed in adverbs of hasty or present time; such as are “confestim, illico, extunc, extemplo," "presently, forth with, from thenceforward," and the like : for those who appoint the punishment to be incurred without any interval of time, in effect say, that we are not to expect the dull and long-protracted methods of courts and judges, and commissions and citations, and witnesses and adjournments. •Protinus,' i. e.‘non exspectato judiciorum ordine,' say the lawyers.
Protinus ad regem cursum detorquet Iarban! Forthwith, that is, without the longer methods of the court.
Nec mora, continuò matris præcepta facessitu. These words and the like have present effect; and therefore do signify a present obligation of conscience. Concerning the signification of which and the like words it is hard to say, whether we are to be guided by the lawyers or by the grammarians. The lawyers are the best witnesses of sentences, and precedents, and the usages and the customs of laws; and therefore can best tell how the laws are said to
. In lib. Si unquam, cap. de Revocandis Donationibus. + Virg. Æn. iv. 196.
u iv. Georgic, 5 18.
bind, and what sentences they are said to contain : and because by them we are to be judged in public, if questions do arise, from them also we may take our rule in private. This seems reasonable: but on the other side, I find that lawyers themselves say otherwise; and I have seen Tiraquel much blamed, for quoting Bartholus, Baldus, and Salicetus" for the signification of the word ' mox,' by and by,' which is of use in this present rule: because though they were great lawyers, yet they were no good grammarians; and therefore that in these cases, Erasmus and Calepine, Valla and Linacre, Cicero and Terence, Priscian and Donatus, were the most competent judges. There is something on both sides, which is to weigh down each other, according as some other consideration shall determine. But therefore, as to the case of conscience, I shall give a better and surer rule than either one or other, or both : and that is,
31. (7.) This being in matters of load and burden, by the consent of all men, the conscience and the guilty person are to be favoured as much as there can be cause for. Therefore whenever there is a dispute, whether the sentence of the law must be incurred presently, or that the sentence of the judge is to be expected; the presumption is always to be for ease, and for liberty, and favourable senses. Burdens are not to be imposed upon consciences without great evidence, and great necessity. If the lawyers differ in their opinions concerning the sentence, whether it be already made, or is to be made by the judge, let them first agree, and then let the conscience do as she sees reason, Thus if the word 'mox,' .by and by,' be used in a sentence of law, because we find that in some very good authors it signifies with some interval of time (as in Cicero, “ Discedo parumper à somniis : ad quæ mox revertar* ;” and “ Præteriit villam meam Curio, jussitque mihi nunciari se mox venturum '): therefore we may make use of it to our advantage, and suppose the conscience of a delinquent at liberty from a spontaneous execution of a sentence of law, if for that sentence he have no other sign, but that the word ' mox' is used in the law. “ In pænis benignior est interpretatio facienda,” “ In matters of punishment we are to take the easier part ;” and that is, to stay
u Alph. à Castro lib. 2. de Leg. Pæn. cap. 7. s De Divin. i. c. 23. Davis, Rath. pag. 61.
y Ad Attic. X. 4,
from being punished as long as we can : and in proportion to this, Panormitan ’ gives this rule ; “ When the words of the law signify the time past, or the time to come, we are to understand it in the more favourable sense; and that it includes the sentence of the judge, before which the criminal is not obliged. And to this very purpose the words of infinite and indefinite signification are to be expounded : and this answers many cases of conscience, and brings peace in more; and the thing being reasonable, peaceful, and consonant to the common opinion of the lawyers, ought to pass for a just conclusion and determination of conscience.
32. (8.) After all, as there is ease to the criminal, so there must be care of the law; and therefore when a law imposes a punishment which would prove invalid, to no purpose and of no effect, unless it be of present force upon the committing of fact,-it is to be concluded, the law intends it for a 'sententia lata à jure,' that it presently obliges the conscience of the guilty person. The reason is, because it cannot be supposed that the law should do a thing to no purpose, and therefore must intend so to oblige as that the sin be punished. If therefore to expect the sentence of the judge would wholly evacuate the penalty, or make it insufficient to do the purpose and intention of the law; the sentence of the law must be suffered by the guilty person without the judge. And this is true, however the words of law be used, whether in the past, present, or future time, whether simply or by reduplication, whether imperatively or infinitely: such are the penalties of infamy, irregularity, nullity of actions or contracts, especially if they be of such contracts, which if they once prove valid, are so for ever, as in the contract of marriage. And therefore if a law be made that a man shall not marry her, whom, in her husband's lifetime, he had polluted : this must be supposed to be meant of nullifying the contract before it is consummate ; that is, it is a sentence which the criminal must execute upon himself: for if he does not, but de facto' marries the adulteress, and consummates the marriage, it will be too late to complain to the judge; for he cannot annul the contract afterward.
a Cap. in Pænis de Reg. Jar. lib. 6.
Penalties imposed by the Judge must be suffered and submitted
to; but may not, after such Sentence, be inflicted by the Hands
of the condemned. 1. The first part of this rule hath in it but little difficulty ; for there is only in it this variety : In all punishments that are tolerable, that is, all but death, dismembering, or intolerable and extremely disgraceful scourgings, and grievous and sickly imprisonments, we owe not only obedience to the laws, but reverence and honour; because whatsoever is less than these, may, without sin, and without indecency, and without great violations of our natural love and rights, be inflicted and suffered.
2. But the other evils are such, as are intolerable in civil and natural account; and every creature declines death, and the addresses and preparations to it, with so much earnestness, that it would be very unnatural and inhuman not to allow to condemned persons a civil and moral power of hating and declining death, and avoiding it in all means of natural capacity and opportunity. A man may, if he can, redeem his life with money, but he must not corrupt justice ; a man may run from prison if he can, but to do it he must not kill the jailer; he may escape death, but he must not fight with the ministers of justice; he may run away, but he must not break his word ; that is, he may do what is in his natural capacity to avoid these violences and extremities of nature, but nothing that is against a moral duty. “Non peccat quisquam, cum evitat supplicium, sed cum facit aliquid dignum supplicio;" “ He that avoids his punishment, sins not, provided that in so doing he act nothing else worthy ofpunishment:" so St. Austin.
3. This relies also upon a tacit or implicit permission of law; for in sentences given by judges, and to be executed by the ministers of law, the condemned person is not commanded, nor yet trusted with the execution, and it is wholly committed to ministers of purpose: and therefore the law supposes the condemned person infinitely unwilling, and lays bars, restraints, guards, and observators, upon him; from all which
a Lib. de Mendac. cap. 13.
if he can escape, he hath done no more than what the lawgiver supposed he was willing to do, and from which he did not restrain him by laws, but by force. But if to fly from prison, or to decline any other sentence, be expressly forbidden in the law, or if it be against his promise, or if a distinct penalty be annexed to such escapings, then it is plain that the law intends to oblige the conscience, for the law cannot punish what is no sin; it is in this case a transgression of the law, and therefore not lawful. But because the law hath no punishment greater than death, it cannot but be lawful for a condemned man to escape from prison if he can, because the law hath no punishment to establish a law against flying from prison after the sentence of death. And if it be said, that if a prisoner who flies, be taken, he hath more irons and more guards upon him, and worse usage in the prison; that is matter of caution, not punishment, at least not of law: for as for the jailer's spite and anger, his cruelty and revenge, himself alone is to give accounts.
4. But now for the other part of the rule, there is some more difficulty ; which is caused by the great example of some great and little persons , who to prevent a death by the hand of their enemies, with the additions of shame and torment, have laid violent hands upon themselves. So did Zeno and Chrysippus, Cleanthes and Empedocles, Euphrates the philosopher, and Demosthenes, Cato Uticensis, and Porcius Latro, Aristarchus and Anaxagoras, Cornelius Rufus and Silius Italicus. The Indians esteemed it the most glorious way of dying, as we find in Straboa, Olympiodorus®, and Porphyryf; and Eusebius tells, that most of the Germans did use to hang themselves. And, amongst the Romans, they that out of shame of being in debt, or impatience of grief, killed themselves, might make their wills, and after death they stood; “manebant testamenta, pretium festinandi," saith Tacitus, that was “the price of their making haste. Platos discoursing of this question, said, Oů uévtoi iows Bráoetal aúτον ου γαρ φασι θεμιτόν είναι, « Peradventure a man must not do violence to himself, for they say it is not lawful.” Upon this Olympiodorus discoursing on these words, reckons five cases
Vide Diogen. Laert. in Zenon. -Alexander Aphrodis. in 2. de Anima.--Lacian. in Macrob.-Galen, 5. de Loc. Affect.-Plutarch. in Pericle.--Suidas. Plin. lib. 1. ep. 12.
din Pbædon. Platon. • Περί φιλοψυχ. 4.
1 Annal. 6.
& Phæd. Fischer, c. 5. p. 252.
c Lib. 15.