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would be free; and, if he may untie the knot of a cord wherewith he was bound, why may he not unrivet or grate an iron wherewith he is fettered? forsomuch as he is not bound to yield or continue a consent to his own durance. This charge lies upon the keeper; not the prisoner.
A man, that is condemned to perish by famine; yet, if he can come by sustenance, may receive and eat it. That Athenian malefactor, in Valerius Maximus *, sentenced to die by hunger, was never found fault with, that he maintained himself in his dungeon by the breasts of his good natured daughter.
And, if a man be condemned to be devoured by a lion, there can be no reason why he should not, what he may, resist that furious beast, and save his own life.
But, when I see our Romish Casuists so zealously tender in the case of Religious persons, as that they will not allow them, upon a just imprisonment, to stir out of those grates, whereto they are confined, by the doom of their Prelates; and, when I see the brave resolutions of holy Martyrs, that, even when the doors were set open, would not flee from a threatened death ; I cannot but conclude, that, whatsoever nature suggests to a man, to work for his own life or liberty, when it is forteited to justice, yet, that it is meet and commendable in a true penitent, when he finds the doom of death or perpetual durance justly passed upon him, humbly to submit to the sentence; and not entertain the motions and means of a projected evasion, but meekly to stoop unto lawful authority, and to wait upon the issue, whether of justice or mercy; and, at the worst, to say, with the poet, Merui, nec deprecor.
Whether, and how far, a man may be urged to an oath. An oath, as it is a sacred thing, so it must be no otherwise than holily used; whether on the part of the giver or taker: and, therefore, may neither be rashly uttered, nor unduly tendered upon slight or unwarrantable occasions.
We have not to do here with a promissory oath, the obligation whereof is for another inquisition : it is the assertory oath, that is now under our hand; which the Great God, by whom we swear, hath ordained to be an end of controversies : At the mouth of two or three witnesses, shall the matter be established ; Deut. xix. 15. and xvii. 6.
As for secular titles of " mine” or “ thine," the propriety of goods or lands ; next after written evidences, testimonies upon oath must needs be held most fitly decisive: the only scruples are wont to be made in causes criminal.
ax. l. y. Dom. Sot. de Jure, &c. l. v. q. 5.
Wherein, surely, we may first lay this undoubted ground, that no man is to be proceeded against without an accuser, and that accusation must be made good by lawful witnesses. A judge may not cast any man, upon the plea of his own eye-sight : should this liberty be granted, innocence m.ight suffer, and malice triumph. Neither may any man be condemned upon hearsay; which bow commonly false it is, daily experience sufficiently evinceth.
On the other side, men are apt enough to connive at each other's wickedness : and every man is loth to be an informer; whether out of the envy of the office, or out of the conscience of his own obnoxiousness.
And yet, thirdly, it is requisite, that care should be taken and all due means used by authority, that the world may not be overrun with wickedness; but that vice may be found out, repressed, punished.
There cannot, fourthly, be devised a fairer and more probable course for the effecting hereof, than by the discovery, upon oaths, of the Officers and Jurors, in Assizes and Sessions; and of Churchwardens and Sidemen, in Visitations.
The ground of all presentments to or by these men, must be either their own knowledge, or public fame, or an avowed information. Any of these gives a lawful hint to the judge, whether ecclesiastical or civil, to take full trial of the cause and person.
Knowledge is always certain; but fame is often a liar: and, therefore, every idle rumour must not be straight taken upon trust; the inconvenience and injury whereof I have often seen, when some malicious person, desiring to do a despite to an innocent neighbour, raises a causeless slander against him, and whispers it to some disaffected gossips: this flies to the ear of an apparitor: he straight runs to the office, and suggests a Public Fame: the honest man is called into the court : his reputation is blurred, in being but summoned ; and, after all his trouble and disgrace, hath his amends in his own hands.
The rule of some Casuists, That ten tongues make a Fame, is groundless and insufficient : neither is the number so much to be regarded, as the quality of the persons: if a whole pack of debauched companions shall conspire to stain the good name of an innocent, as we have too often known, it were a shameful injustice to allow them the authors of a Fame.
The more judicious doctors have defined a Public Fame, by the voice of the greater part of that community, wherein it is spread; whether town, parish, city: and, therein, of those that are discreet, honest, well-behaved.
We are wont to say, “ Where there is much smoke, there is likely some fire.” An universal report from such mouths, therefore, may well give occasion to a further inquiry.
If any man's zeal against vice will make it a matter of instaxe, the case is clear, and the proceeding unquestionable : but, if it be matter of meer office, the carriage of the process may be liable to doubt.
Herein it is meet such course be taken, as that neither a notorious evil may be smothered, nor yet innocence injured. To which purpose, the most confident reporter may be called upon, because fame hath too many tongues to speak at once, to lay forth the grounds of that his whispered crimination; and, if the circumstances appear pregnant, and the suspicions strong, I see not why the ecclesiastical judge, for with him only in this case I profess to meddle, may not convent the person accused ; lay before him the crime, which is secretly charged upon him; and, either upon his ingenuous confession enjoin him such satisfaction to the scandalized congregation as may be most fit, or upon his denial urge him to clear himself by lawful witnesses of the crime objected: or, why he may not, if he see further cause, appoint a discreet and able prosecutor to follow the business in a legal way; upon whom the accused, if he be found guiltless, may right himself.
But, all this while, I find no just place for an oath to be administered to a man for his own accusation ; which, certainly, is altogether both illegal and unreasonable. If a man will voluntarily of. fer to clear himself by an oath, out of the assuredness of his own innocence, he may be allowed to be heard; but this may neither be pressed to be done, nor yet conclusive when it is done: for, both every man is apt to be partial in his own case; and he, that durst act a foul sin, will dare to face it. It was ever, therefore, lawful, even when Ecclesiastical Inquisitions were at the highest, for a man to refuse answer to such questions upon oath, or otherwise, which tended to his own impeachment; as unjustly and unwarrantably proposed : and it was but a young determination of Aquinas *, when he was only a Bachelor, in the General Chapter at Paris, contradicted by all the ancient Graduates there, that, when the crime is notorious and the author unknown, the secret offender is
his Ordinary's charge and command, to reveal himself. Even the Spanish Casuists, the great favourers and abettors of the Inquisition, teach, that the judge may not, of himself, begin an inquiry : but must be led by something, which may open a way to his search ; and, as it were, force him to his proceeding, ex officio; as public notice, infamy, common suspicion, complaint; otherwise, the whole process is void in law. Although, herein, some of them go too far, in favour of their great Diana; that, where the crime is known and the author unknown, the judge may, in a generality, inquire of him that did it; and if he have any private information, though without any public fame foregoing, he may, in some cases, raise a particular inquisition upon the party, and call him to defend himself: which course, certainly, gives too much advantage to private malice, and opens too much way to the wronging of innocence.
The fair way of proceedings in all Christian Judicature, should be, by accuser, witness, and judge; in distinct persons, openly known : the accuser complains; the witness evinceth; the judge
*Silvestr. V. Correct. Dor.. Soc. l. v. de Jure, q. 4. Less. de Judice l. ii. c. 29.
sentences: the one may not be the other ; much less, all three. Were that to be allowed, who could be innocent?
When a witness, then, is called before a competent judge, to give evidence upon oath concerning a third person, in a matter cognoscible by that jurisdiction, he is bound to swear in truth, in judgment, ani in righteousness ; Jer. iv. 2. As for his own concernments, he must refer himself to the testimonies and oaths of others,
Whether a judge may, upon allegations, proofs, and evidences of
others, condemn a man to death, whom he himself certainly knou's to be innocent.
The question hath undergone much agitation.
The stream of all ancient Divines and Casuists runs upon the affirmative. Their ground is, that the judge, as he is a public person, so, in the seat of judicature, he must exercise a public authority; and, therefore, waving his private knowledge and interest, must sentence according to the allegations and proofs brought before him : since he is a judge of the cause, not of the law; whereof he is to be the servant, not the master. There he sits, not to speak his own judgment, but to be the mouth of the law; and the law commands him to judge according to the evidence: the evidence, therefore, being clear and convictive, the doom can be no other than condemnatory.
For my part, I can more marvel at their judgment herein, than approve it; professing for the negative, with some fewer and later authors, upon these sure grounds :
1. It is an evident and undeniable law of God, which must be the rule of all judges, The innocent and the righteous slay thou not ; Exod. xxiii. 7. This is a law, neither to be avoided, nor dispensed with. Accusations and false witnesses cannot make a man other than innocent: they may make him to seem so ; insomuch as those, that know not the cause exactly, may perhaps be mis-led to condemn him in their judgments : but, to the judge, whose eyes were witnesses of the party's innocence, all the evidence in the world cannot make him other than guiltless ; so as that judge shall be guilty of blood, in slaying the innocent and righteous.
2. The law of judging according to allegations and proofs, is a good general direction, in the common course of proceedings; but there are cases, wherein this law must vail to a higher, which is the law of conscience. Woe be to that man, who shall tie himself close to the letter of the law, as to make shipwreck of conscience: and that bird in his bosom will tell him, that, if, upon whatever pretences, he shall willingly condemn an innocent, he is no better than a.murderer.
3. It is not the bare letter of the law, that wise men should stand upon; but the drift and intention of the law: of that, we may, in some sense, say, as the Apostle did of a higher law, The letler killeth. Now every reasonable man knows, that the intention of the law, is, to save and protect the innocent; to punish only the guilty : the judge, therefore, shall be a perverter of law, if, contrary to his knowledge, he shall follow the letter against the intention, in condemning an innocent.
Let no man now tell me, that it is the law, that condemns the man, and not the judge. This excuse will not serve before the tribunal of heaven. The law hath no tongue: it is the judge, that is ler loquens : if he, then, shall pronounce that sentence, which his own heart tells him is unjust and cruel, what is he but an offieious minister of injustice? But, indeed, what law ever said, “ Thou shalt kill that man, whom thou knowest innocent, if false witness will swear him guilty ?" This is but a false gloss, set upon a true text; to countenance a man, in being an instrument of evil.
What, then, is, in this case, to be done?
Surely, as I durst not acquit that judge, who, under whatever colour of law, should cast away a known innocent; so, I durst not advise, against plain evidences and flat depositions, upon private knowledge, that man to be openly pronounced guiltless, and there. by discharged: for, as the one is a gross violation of justice; so were the other a public affront to the law, and of dangerous consequence to the weal-public. Certainly, it could not but be extremely unsafe, that such a gap should be opened to the liberty of judgment, that a private breast should be opposed, with an apparent prevalence, against public convictions.
Our Casuists have beaten their brains, to find out some such evasions, as might save the innocent from death, and the judge from blood-guiltiness. Herein, therefore, they advise the judge, to use some secret means to stop the accusation or indictment; (a course that might be as prejudicial to justice, as a false sentence :) to sift the witnesses apart, as in Susanna’s case; and, by many subtle interrogations of the circumstances, to find their variance or contradiction. If that prevail not, Cajetan goes so far, as to determine it meet (which how it might stand with their law, he knows: with ours it would not), that the judge should, before all the people, give his oath, that he knows the party guiltless ; as whom he himself saw, at that very hour, in a place far distant from that, wherein the fact is pretended to be done. Yea, Dominicus à Soto * could be content, if it might be done without scandal, that the prisoner might secretly be suffered to slip out of the gaol, and save himself by Hight. Others think it the best way, that the judge should put off the cause to a superior Bench: and that himself should, laying aside his scarlet, come to the Bar; and, as a witness, avow upon oath the innocence of the party, and the falsity of the accusation. Or, lastly, if he should, out of malice or some other sinister ends, as of the forfeiture of some rich estate, be pressed by higher
* Dom. à Sot. de Jure, &c. I. v. 9.4.