but the hand of God that is to be revered, who by this hand cuts him off, and, it may be, therefore thus cuts him off, because he will give him no longer time. However, the magistrate is to look to his rule, not to rare and accidental events, which are only in the power of the Divine Providence, and not in the will of the man, to prevent. 13. (9.) No man can say, that a condemned criminal, that makes the best use of his time after sentence, or after his just fears of it, or after the apprehension of the probabilities of it, shall certainly be damned for want of more time. For as no man knows just how much time is necessary; so neither can he tell, how deep the repentance of the man is, nor yet how soon God will return to mercy. Therefore upon so great uncertainties, and the presumption and confidences relying upon such a secret, to omit a certain duty is no way allowable. It is true there are, amongst some wise and pious persons, great fears in this case; but fear is very good, when it is made use of to good purposes, to obstruct the course of sin, but not the course of justice. And some men fear in other cases very bad; which yet ought not to be made use of to preserve the lives of murderers. Some fear that all Papists shall be damned, and some say that all Protestants are in as bad condition; and yet he that thinks so, would suppose the case too far extended, if it might not be consistent with charity to put (for example's sake) the gunpowder traitors to death, till they had changed their religion. Whatsoever we fear, we are to give our brethren warning of it, while it is time for them to consider; but these doubtful disputes must not be used as artifices to evacuate the purposes and defensatives of laws. And since the magistrates cannot know what the sentence of God concerning such persons shall be, they may hope well as readily as ill, and then there is no pretence to arrest the sentence beyond the prudent and charitable periods of the law. 14. (10.) No change in government, no alteration of laws, no public sentences, are to be made or altered upon the account of any secret counsel of God; but they are to proceed to issue upon the account of rules, and measures of choice, and upon that which is visible, or proved, that which is seen and heard, that which God commands and public necessities require; for otherwise there can be no rule, no orderly proceedings, no use of wise discourses, but chance and fear and irregular contingencies must overrule all things. 15. (11.) The magistrate gives sentence against criminals for single acts, not for vicious habits; for concerning these he hath nothing to do, and if the criminal perish for these, it is only chargeable upon his own account. But if, by the hand of justice, he dies for a single act, the shorter time, that is usually allowed to those that are appointed to die, may be so sufficient, that, if the criminal make full use of it, his case is not so desperate, as that the objection can prevail : for if there be nothing else to hinder him, it may be very well; but if there be any thing else, that he, and not the magistrate, was first to have considered; for himself knew of it, the magistrate did not. 16. (12.) Every man that lives under government, knows the conditions of it, those public laws, and the manners of execution; and that he who is surprised in his sin by the magistrate, shall be cut off like him, who, by a sudden sickness, falls into the hands of God. It is a sudden death", which every man ought to have provided for; only in this case it is more certain, and to be expected: and he that knows this to be his condition, if he will despise the danger, when he falls into it, cannot complain of the justice of the law, but of his own folly which neglected life, and chose death and swift destruction. 17. Though from these considerations it appears, that the pretence of charity cannot evacuate that justice, which hath given commission to all lawful magistrates, and warrant to all capital sentences, and authority to all just wars, in which it is more than probable many will be killed that are not very well prepared ; yet this power of inflicting capital punishments must not be reduced to act in trifling instances, for the loss of a few shillings, or for very disobedience to command; it must not be done, but in the great and unavoidable necessities of the commonwealth. For every magistrate is also a man; and as he must not neglect the care and provisions of that, so neither the kindnesses and compassion of this. Nothing can make recompense for the life of a man, but the life of a better, or the lives of many, or a great good of the whole community. y See the Doctrine and Practice of Repentance, chap. 5. sect. 5. p. 280. But when any of these is at stake, it is fit the innocent be secured by the condemnation of the criminal. And this was excellently disputed by Cicero in his argument against Calenus upon this very question: "Hoc interest inter meam sententiam, et tuam: ego nolo quemquam civem committere, ut morte multandus sit: tu, etiamsi commiserit, conservandum putas. In corpore si quid ejusmodi est, quod reliquo corpori noceat, uri secarique patimur; ut membrorum aliquod potius, quam totum corpus intereat: sic in reipublica corpore, ut totum salvum sit, quidquid est pestiferum, amputetur. Dura vox, multo illa durior: Salvi sint improbi, scelerati, impii: deleantur innocentes, honesti, boni, tota respublica."-Cicero would have no citizen deserve to die but Calenus would have none die though he did deserve it. But Cicero thought it reason that" as in the body natural we cut off an arm to save the whole; so in the body politic we do the same, that nothing remain alive that will make the other die. It is a hard sentence, it is true, but this is a harder: Let the wicked be safe; and let the innocent, the good, the just men, the whole commonwealth, be destroyed." 18. This we see is natural reason, but it is more than so; it is also a natural law, expressed and established by God" himself: "He that sheddeth man's blood," in man, or "by man shall his blood be shed:"--which words are further explicated by the Chaldee paraphrast; "Qui effuderit sanguinem hominis cum testibus, juxta sententiam judicum sanguis ejus fundetur;" "He that sheds the blood of man with witnesses, his blood shall be shed by the sentence of the judge." For the majesty of the supreme prince or judge justi Vim terroris habet, procul an propè, præsto vel absens : Semper terribilis, semper metuenda, suoque said Guntherus", with greater truth than elegance: "He hath of God. The sum of these things I give in the words of St. Austin: "Non ipse occidit qui ministerium debet jubenti, sicut adminiculum gladius est utenti. Ideo nequaquam contra hoc præceptum fecerunt, quo dictum est, Non occides,' qui Deo auctore bella gesserunt, aut personam gerentes publica potestatis, secundum ejus leges, hoc est, justissimæ rationis imperium, sceleratos morte puniverunt." They who make just wars, and those public persons, who, according to the laws, put malefactors to death, do not break the commandment which says, 'Thou shalt not kill.' For as the sword is not guilty of murder, which is the instrument of just executions, so neither is the man that is the minister of the judge, nor the judge who is the minister of God; Oroũ diáκόνος ἔκδικος εἰς ὀργὴν, “ God's minister of revenge and anger:" and by fear to restrain the malice of evil men, and to prevent mischief to the good, is the purpose of authority and the end of laws. So Isidore": "Factæ sunt leges, ut earum metu humana coerceatur audacia, tutaque esset inter improbos innocentia, et in ipsis improbis formidato supplicio refrænaretur nocendi facultas." Fear is the beginning of wisdom, and fear is the extinction and remedy of folly; and therefore the laws take care by the greatest fear, the fear of death, to prevent or suppress the greatest wickedness. RULE II. Penal Laws do sometimes oblige the guilty Person to the suffering the Punishment, even before the Sentence and Declaration of the Judge. 1. THAT this is true concerning divine laws is without peradventure, not only because the power of God is supreme, mere, absolute, and eternal, and consequently can oblige to what, and by what measure, and in what manner, and to what purposes, he please; but also because we see it actually done in the laws and constitutions both Mosaical and evangelical. 2. He that struck out an eye or tooth from a servant, was Lib. 4. Etymol. cap. 21. et habetur. dist. 4. can. facta sunt leges. bound to give him his liberty; that is, as his servant was a loser, so must he that caused it: the man lost his tooth, and the master lost the man; he gains his liberty, that lost an eye. Now that this was to be done by the master himself without compulsion from the judge, is therefore more than probable, because God, who intended remedy to the injured servant, had not provided it, if he left the matter to the judge, to whom the servant could have no recourse without his master please; and if he give him leave to go, it is all one as doing of it himself, for he that gives leave that himself be compelled, first chooses the thing, and calls in aid from abroad to secure the thing at home. But, therefore, God bound the conscience of the man, tying him under pain of his own displeasure that the remedy be given, and the penalty suffered and paid under the proper sentence of the obliged criminal. 3. To the same purpose was that law made for him, that lies with a woman in the days of her separation, he shall be unclean until the evening; now that this was not to be inflicted by the judge, but that the guilty person should himself be the executioner of the penalty, is therefore certain, because by another law concerning the same legal uncleanness it was decreed, that the fact shall be capital, that is, if it come before the judge: of which I have already given account. 4. Thus also God imposed upon him, that ate of the holy things unwittingly, the burden of paying the like, and a fifth part besides, for punishment of his negligence and want of caution. This himself was to bring, together with the price of redemption or expiation. Now this being done against his will, might also be done without the observation of any other; and yet upon the discovery he was thus to act his own amends and penalty. 5. And indeed the very expense of sacrifices, to the bringing of which the criminals were sentenced by the law, is sufficient demonstration of this inquiry; for it was no small burden to them, and diminution of their estates, to take long journeys, and bring fat beasts and burn them to the Lord; but to this they themselves were tied, without d Exod. xxi. 25, 26. e Lib. 2. chap. 2. rule 3. n. 8. |