a 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 ; 'Ανελεύθερον καὶ πάνυ φιλόδικον κακηγορίας δικάζεσθαι, “ It is not ingenuous to be running to law upon every provocation, though by real injury :"-Miré ἄρχειν λοιδορίαν, μήτε ἀμύνεσθαι τοὺς λοιδοροῦντας, 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', tepì toũ, ei τὸν ἀδικήσαντα ἀνταδικητέον; “ 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 Homer: · Φρονέω δὲ τετιμῆσθαι Διὸς αἴση, "I hope for this charity to be rewarded by God himself." If a man have relations, and necessities, and obligations, by 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 z Vide Great Exemplar, part 2. b Serm. 2. Davis, pag. 18. a Apud Lysiam. II. 1', 604. 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. 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: Ouк elev av TOTE TOλTται φίλοι, ὅπου πολλαὶ μὲν δίκαι ἐν ἀλλήλοις εἶεν, ἀλλ ̓ ὅπου ὡς ὅτι σμικρόταται καὶ ὀλίγισται, “Then charity is best preserved amongst citizens, not when there are most decisions of causes, but when the suits are fewest." RULE VII. It is not lawful to punish one for the Offence of another; 1. "QUOD tute intristi, tibi exedendum est," said the comedy; "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 conjunct 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 d 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, 66 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 ". 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 wife will die with sorrow: but the law cannot put the wife to death, or the son, and let the husband go free. Que relative may accidentally come into the society of another's punishment, not 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 e L. liber ff. ad legem Aquiliam. In cap. Cum Homo 23. q. 5. 1 Cor. vi. 20. debt, gives or lends it to him that is principally obliged; and therefore it is just to take it, and the surety hath power to do it. But by the way it is observable, that the surety can only oblige his money, or himself to the payment of his money: but when the creditors had power to torment the insolvent debtors, no man could give himself a surety directly for that torment; but by making himself a debtor, he did by conse quence make himself criminal if he did not pay, and so might with as much justice be tormented as the principal debtor. 4. But the whole business is unreasonable as to this instance, and therefore the inquiry is soon at an end, and the case of conscience wholly different; for in this particular it is not only unlawful to punish the surety with corporal pu nishment, but even the principal that is insolvent, is to be let alone. If he fell into poverty by his prodigality, the law may punish that as she please; or if he intends to defraud the creditor, he may be punished, or constrained to pay: but if he fall into poverty ἐκ τοῦ συμβεβηκότος καὶ οὐ ῥαθυμίᾳ, as Justinian's expression is, "by unavoidable accident, not by impious courses," it is against justice and charity to put him to trouble. 5. Concerning which, though it be not pertinent to this rule, but here only very well occasioned, I shall give this short account, that at once I may be wholly quit of this particular. In the laws of the Twelve Tables, it was permitted to creditors to imprison, to torment, to put their insolvent debtors to death; and if there were many of them, they might cut the body in pieces, and every man go away with his share. "Nihil profecto immitius," says A. Gellius"; "nisi, ut reipsâ apparet, eo consilio tanta immanitas pœnæ denunciata est, ne ad eam unquam perveniretur." It was an intolerable and cruel justice, and only therefore published in so great a terror, that it might never be put in execution; and indeed, as he observes, it was never practised. 6. But" addici nunc et vinciri multos videmus," saith he; that was the next cruelty: the debtors were sold and all their goods; even kings, subject to the Roman empire, were, with their crowns and purple, their sceptre and royal ensigns, published by the crier, and made slaves to pay their debts. b Lib. 20. cap. 1. Oiselii, p. 1106. |