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16. (2.) It is lawful for a Christian to require of the magistrate 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
τιμωplay or punishment' (meaning that which is just, and in some cases reasonable to be required) to be kakov ávtanódoσιν εις το τού τιμωρούντος συμφέρον αναφερομένην, "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, του ποιoύντος ένεκα, ίνα αναπληρωθή, “ for the satisfaction of him that punishes,” that is, that 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 revenge, and this is caution and defence.
17. (3.) In all repetitions of our rights, which are permitted 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 ßpewç dikny, '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 erough already of calamity :" Mndè pixpòv kueistoθαι μηδένα βουλόμενοι, ως ο καινός νομοθέτης έκέλευσε, “Α 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; Ου δικάζονται τοίς αρπάζουσι, saith Justin Martyr of them, They do not go to law with them that rob them." But
that it is lawful", the public necessities are a sufficient argument; and yet men for want of charity make more necessities 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 * said; 'Ανελεύθερος και πάνυ φιλόδικον κακηγορίας δικάζεσθαι, «It is not ingenuous to be running to law upon every provocation, though by real injury :"-Míte άρχειν λοιδορίαν, μήτε αμύνεσθαι τους λοιδορούντας, said Pythagoras, “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', tepi tou, si τον αδικήσαντα ανταδικητέον; “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 patience, 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, mutilated, or in danger of death, if he bears it patiently and charitably, he may better say it than Achilles did in Homero;
Φρονέων δε τετιμήσθαι Διός αίση, , "I hope for this charity to be rewarded by God himself.” If a man have relations, and necessities, and obligations, 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 vexatious, 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 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 priùs tentanda quam bello experiendum :" "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 prætor factum ejus, qui tanti habuit re carere, nè propter eam sæpiùs litigaret. Hæc enim verecunda cogitatio ejus, qui lites execratur, non est vituperanda.” A man must be modest and charitable in his necessary suits at law: not too ready, not too greedy, not passionate, not revengeful; seeking to repair himself when he must needs, but not delighting in the breaches made upon his neighbour.
· Vide Great Exemplar, part 2. b Serm. 2. Davis, pag. 18.
a Apud Lysian. e Il. r, 604.
20. In order to this, it would prevent many evils, and determine many cases 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 notoriously 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 purposes,-sent for him, and told him that he owed his painter a hundred crowns, and was not willing to pay him; and therefore asked him if he would defend his cause in case the painter should require his money at law. The advocate promised 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 politics, but cases and rules and 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 unjust, the law would sufficiently punish him besides : but even upon a just cause to go to law, is not the commendation of Christian justice, much less of charity: Oůk elev ăv TOTE Toliται φίλοι, όπου πολλαι μεν δίκαι εν αλλήλοις είεν, αλλ' όπου ως ότι σμικρόταται και ολίγισται, «Then charity is best preserved amongst citizens, not when there are most decisions of causes, but when the suits are fewest."
It is not lawful to punish one for the Offence of another;
merely, and wholly. 1. "Quod tute intristi, tibi exedendum est,” said the comedy 4; “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, ofright 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 conduct of conscience.
2. The first inquiry is concerning persons conjanct in contract; such as are, pledges in war, sureties for debt, undertakers 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. The Thessalians 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 reproach, 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 pledges 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
a Phorm. act. 2. sc. 1. 4. Mattaire, p. 263.
suade dthe Romans not to release the African prisoners, the Carthaginians had reason to account him guilty as his country. 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; 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': 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 8. 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 satisfied, as if the offending person had suffered. If a father be a traitor, the law may justly put him to death, though the wise will die with sorrow: but the law cannot put the wife to death, or the son, and let the husband go free. One relative may accidentally come into the society of another's punishment, vot 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 • L. liber ff. ad legem Aquiliam.
' In cap. Cum Homo 23. q. 5. & 1 Cor. vi. 20.