The regiment of the Church as it is agreable with Scriptures, all antiquities of the Fathers, and moderne writers, from the Apostles themselues, vnto this present age.

CHAP. XV. Of the punishing and pardoning of male factors.

THe patrons of the newe English long wished presbyterie, are so sharpe, for∣ward, and rigorous, in the punishing of sin & sinners, that in effect they spoile all magistrates of their lawfull authori∣tie, & make them guiltie of sinnes moe then a fewe. For they write resolutely (I will not say, audaciously,) that the ciuill magistrates cannot saue the liues of any blasphemers, murderers, adulterers, and such like. Which how vnsound a doctrine it is, I purpose in God to make it manifest, by way of conclusions.

The first Conclusion.

No Christian Magistrate is this day bound to obserue,

either the Ceremoniall, or the Iudiciall Lawe of Moses. I prooue it briefelie. The Lawe of Moses was Tripar••ite: Ceremoniall, Iudiciall, Morall. Of which three, the Mo∣rall part onely is this daye in force with Christians. The reason hereof is this; because it is in deede the very lawe of Nature, imprinted in euery mans heart in his Na∣tiuitie, and so cannot be altered. The Iudiciall parte was properlie, and peculiarlie appointed of God, for conserua∣tion of Iustice, among the Iewes, in the land of promise, the land of Canaan, the land of Iewrie. The whole order of which gouernment ceased long fithence: viz. Euer since the people of Israell were expelled out of Iudaea, & began to dwell amongst the Gentiles: liuing without Gouernours, without a King, without a Priest, and without a Lawe. The Ceremoniall part was ordeined, to prefigure Christs future Priesthoode; and therefore was it whollie abro∣gated, by Christs most blessed and Sacred Aduent. For Christ was the ende of the Lawe; in whom were fulfilled as well the figures as the promises contayned in the Lawe, and the Prophets. All which Saint Paul compriseth pithily, in these golden wordes. For, if the Priesthoode bee chaunged, then of necessitie, the Lawe also must bee changed. Yea, Christ himselfe seemed to insinuate no lesse, when hee refused to condemne the adulteresse to death, ac∣cording to the Iudiciall law of Moses; albeeit the Scribes & Pharisees did euen then vrge him with the constitution of that Law. And S. Austen doth conclude no lesse out of Christs words, if hee be rightly vnderstood. But, for the true sense and meaning of S. Austens discourse, his two books written to Pollentin, must be well pondered & aptly matched together. For I stand not so much of Christs freeing the adulteresse, from the punishment of the Iudici∣all law of Moses; as of that other ground, vppon which S. Austen stayeth himselfe. viz. That adulterie doth not dis∣solue the bond of holy Wedlock. For albeeit sundrie late Wryters, otherwise of great learning and rare gifts, doe

constantly teach (which some of our men haue also put in practise) that when the husband is diuorced from his wife, being an adulteresse then hee may lawfullie marrie an o∣ther: yet Saint Austen grounding his opinion, vppon the words of Christ, & of S. Paul; concludeth constantly that whosoeuer shall marrie another wife, during the life of his former wife diuorced for adulterie, doth himselfe commit adulterie. Which (if it be true, which I leaue to the iudge∣ment of the Church,) prooueth euidently that the Iudiciall law of Moses is not of sorce. These are S. Austens words: Haec verba Apostoli tot••es repetita, toties inculcata, vera sunt, viua sunt, sana sunt, plana sunt. Nulltus viri posterioris muli∣er vxor esse incipit, nisi prioris esse desiuerit. Esse autem desinet prioris, simoriatur vir eius, non sifornicetur. These words of th' Apostle so often repeated, so often inculcated, are true, are quick, are sound, are plaine. A woman beginneth not to bee the wife of any later husband, vnlesse shee first cease to bee the wife of the former. But shee ceaseth to bee the former husbands wife, if her husband die, not if hee com∣mit adulterie.

Hemingius a great learned man, and a zealous professor of the Gospell, hath these words; Est & lex Iudicialis, quae cessante republica Mosis expira••nt: it a vt non necessario vllum hominem obliget in specie, nisi quaetenus portio cius aliqua, aut part est legis naturae, vt lex cōtraincoestas nuptias, Lev. 18. aut a Magistratu propomtur politico fine. There is also the Iudiciall lawe, which expired with the common-wealth of Moses: so that it doth not binde any man of necessitie, but so farre onely, as some portion of it, partaineth to the lawe of Na∣ture, as the lawe against incestuous marriages: or so much of it, as the ci••••le magistrate shall admit for pollicie.

Saint Cyrill hath these words; Sacundum legem adulter cū adultera moriebatur, nec poterāt dicere, poenitentiam petimus & ven••a•• deprecamur. Sequitur apud Christianos vero siadul∣terium fuerit admissum, nonest praeceptum, vt adulter. vel adul∣tera corporall 〈◊〉〈◊〉 puniantur.

In the Lawe, both the adulterer and the adulteresse were punished by death; and they could not say, wee are peni∣tent, & desire pardon for our sinnes. But among Christians, there is no commandement to punish them with death.

M Musculus that most zealous Christian, and great learned Doctor, hath these expresse words: Quaerunt, an tota sit abrogata? respondemus, si totus Moses cessit Christe, vtique tota illius lex, cessit legi Christi. Sequitur: in lege sunt mandata, promissa, & figurae. Perveritatem Christi, cessarunt promissa & figurae. Mandata legis sunt moralia, iudicialia, coe∣remontalia. Caeremo••ialia cessasse, ex eo patet quod ipsum Sa∣cerdotium legis, cuiannexae fuerunt caeremoniae, per sacerdotium Christi secundum or dinem Melchisedech est abrogatum, & iam olim re ipsa cessauit. Iudicialta quoque cessasse in eo declaratur, quod tota Israelis oeconomia qualem terrae promissae inhabitatio requirebat, ab eo tempore cessauit, quo exdulsi inter gentes, sine Rege, sine Ducibus, siue Sacerdote, & sine lege habitare coeperūt.

They demand, if the whole Law be abrogated? wee an∣swere, if whole Moses gaue place to Christ, then hath his whole law giuen place to the lawe of Christ. In the Lawe are commandements, promises, and figures. The comman∣dements of the law are morall, iudiciall, ceremoniall. That the ceremonialls are ceasled, it is thereby euident; for that the Priesthoode of the lawe, to which the ceremonies were annexed, is abrogated by the Priesthood of Christ, according to the order of Melchisedeth, & was long since expired. And that the iudicialls are also ceased, it is herein manifest; for that the whole order of the gouernment of Israell, which was requisite vnto the inhabiting of the land of promise, hath frō that time ceased, when they being expelled, beganne to dwell among the Gentiles, without a King, without gouernours, without a Priest, & w^t out a law.

Maister Caluin hath a large and most learned dis∣course of this question, which is able to satisfie anie in∣different Reader. Some small part thereof I will here set down, referring the Reader vnto the place for the residue.

Sunt qui recte compositā esse remp. negent, quae neglectis Mosis politicis, communibus gentium legibus regitur. Quae sententta quam periculosa sit & turbulenta, videriut alij, mihi falsam esse ac stolidam, demonstrasse satis erit.

There be some which denie that common weale to bee well gouerned, which omitting the politique lawes of Mo∣ses, is ruled by the common lawes of the Gentles. The which opinion how daungerous & seditious it is, let others iudge; it is enough for mee to haue shewed it to bee false and foolish.

Out of these large and learned discourses, it is most apparant to all indifferent Readers; that the law of Moses is wholie expired, and that Christians of necessitie are bound to no part thereof.

The Second Conclusion.

Although the law of Moses bee wholy expyred, so as of necessitie Christians are not bounde to the punishment therein prescribed against sinne & sinners, yet is sinne this day as odious in Gods sight, as euer it was, and remaineth punishable by the law Morall, (which is the law of Nature) more fullie explained in the Law of the Newe Testament; but the quantitie & kinde of punishment therein omitted, by reason of the mutabilitie of times, places, and persons, is wholly referred to the discretion of the wise & Godly Ma∣gistrate. This conclusion containeth in it three parts: the expiration of the Mosaicall law: Gods wrath and indig∣nation against sinne, & the quantitie & kinde of punishing sinne, which is cōmitted to the Magistrate. The first part is sufficiently cleered, by the context of the former cōclusion. The second part may be prooued by manie places of holie writ. For as th' Apostle saith: Tribulation & anguish shalbe vpon the soule of euery man, that doth euill: of the Iew first, & also of the Graecian. Again, in another place, the wages of sinne, is death. Again, therefore shall her plagues come at one day, death and sorrowe, and famine, and shee shall bee

burnt with fire; for that God which condemneth her, is a strong Lord. And Christ himselfe sheweth his generall hatred against sinne, when hee pronounceth life eternall to be prepared for the righteous, and euerlasting paine [ 46] for the wicked. The third and last part is proued two waies; affirmatiuely, and negatiuely. Of the former speaketh S. Paul, when hee telleth vs, That the Magi∣strate is not to be feared for good workes, but for euil. [ 4] Where hee rendreth the reason thereof: vz. for that he is Gods Minister, to take vengeance on him, that doth euill. Of the same speaketh Saint Peter, when hee affir∣meth the magistrate to bee appointed of God, for the punishment of euill doers, and for the prayse of them that doe well. Touching the latter there is no parte in the whole corpse of the new testament, or of the old this day in force, which determineth eyther the quan∣titie or kinde of punishment, with the which male fac∣tors are to bee punished. This negatiue assertion is proofe sufficient, vntill some instance can bee giuen for the affirmatiue. Againe, as the Prophets containe no∣thing, but an explication of the Law; so the New Te∣stament containeth nothing but a cleare explication of the law and the Prophetes. This I haue elsewhere proued at large, where hee that listeth may reade the same: for all the kindes of punishment expressed in the Mosaicall Law were meere iudiciall, and are alrea∣die expired, as is proued in the former conclusion. The law Moral, (which is the law of nature) teacheth vs that sinne ought to be punished; but for that no one kinde of punishment, not quantity in punishing, can be meet and agreeable to all nations, all times, all places, and al persons; it leaueth the quantitie and kinde of punish∣ment to bee determined by the godly and prudent Magistrate, as shall bee thought most fit and commo∣dious for the peaceable gouernement of the common weale, the circumstances of times, places and persons,

euer dulie considered this is euident, by the practise of all nations; for (as M. Caluin writeth truely,) where Gods law (the law of nature,) forbiddeth to steale, the ancient lawes of the gentiles punished theft with dou∣ble; others condemned theues with exile and bannish∣ment; others adiudged them to be whipped; others to be put to death. False witnes was punished in som places onely with infamie, in other places with hanging. All lawes doe reuenge murder with blood, but yet with di∣uers kinds of death. In some places there are grieuouser paines appointed for adulterers, in other places those that are more easie; yet wee see, how they all by this diuersitie of punishment, tend to one and the same end. For they all with one consent, giue sentence of punish∣ment against those offences, which are condemned by the eternall lawe of god; to wit, murder, theft, adulterie, false witnes; but they agree not all; in the manner of the punishment: neithe truely is it necessarie or ex∣pedient, that they should agree therein. Their is a coun∣trey which should out of hand be destroied with theues and slaughter, if it did not with horible example deale verie sharpely with murderers. There is also some time, which requireth the enlarging of the sharpnes of punish¦ment, and some people verie prone to some certaine sinne, vnlesse they be with great rigour kept in awe, he is then very euill affected and enuieth the publike com∣moditie, that is offended with this diuersitie, which is most meete to retaine the obseruatiō of the law of God. Thus writeth M. Caluin, adding much more to the like effect; which I omit in regard of breuitie, referring the reader to the place; out of whose words I note first, that all nations who haue (as S. Paule recordeth) the law of nature ingrafted in their harts, did not agree in the kind of punishing sin, but vsed some one kind, some another. Secondly, that theft, murder, false witnesse, adulte∣rie and such like, haue not one and the same kinde of

punishment, in euerie people & natiō. Thirdly, that ad∣dultery is punished in some places sharply, in other som places more gentlie. Fourthly, that his diuersitie of the kinds of punishment, is not onely godly and lawfull, but also expedient and necessarie. And so, I conclude, that the law morall, (which onely law is now in force) doth leaue the quantitie and kinde of punishment, to be determined by the ciuill Magistrate.

The third Conclusion.

Emperours and Empresses, Kinges and Queenes, ab∣solute Princes and independant Magistrats, may law∣fully in certaine causes, vpon good and godlie conside∣rations, either tolerate sinne vnpunished, or pardon male factors. For the exact handling of this conclusion, (because it is a matter of great importāce, & very ne∣cessary for many respects.) I deem it operapretiū & agrea∣ble to the time in which we liue, to lay down some strōg foundations in that behalfe. First, this is a constant Ax∣iome, approued by vniform assent of al learned diuines Cess inte fine legis, cessat lex ipsa. When the finall cause or end for which the law was made, ceaseth, then doth the law of necessitie also cease. This foundation is grounded vpon the holy scripture; where by the flat decree and setled law of the apostles, wee are bounde to abstaine frō blood & strangled meates. This notwith∣standing, no man hath this day anie scruple of consci∣ence to eate the same; & yet hereof no other sound rea∣son can be yeelded, saue onely that the end for which that law was made, did lōg sithēce cease. For euē at that time was no precise necessitie, to abstaine from blood and strangled meates; But this law was onely made, in respect of the state of that time; that the Gentiles and the Iewes might liue more peaceably together, & there by avoid all occasion of contention and quarreling. And I therefor so soone as that end ceased, the law also

ceased with it, and so we are this day freede from the same, yea, this Axiome is euident lumine naturali, euen by the light of nature: for euery law is made for some end, which end how often soeuer it may bee accompli∣shed without the law, so often the execution of the law is needeles.

Secondly, wee must holde this for a constant foun∣dation, that albeit the ciuill Magistrate be commaun∣ded to punish malefactors, yet is neither the kinde of punishment, nor the quantitie thereof taxed by the law of God, but it still abideth indifferent, to bee determi∣ned by the supreme ciuill Magistrate: (for as I haue alreadie proued,) although there were speciall punish∣ment prescribed in the iudiciall law of Moses, for trans∣gressors of the Sabboth, for adulterers, for false wit∣nesses, for murderers, theeues and such like, yet neither by the Law morall, nor by any Law in the New Testa∣ment, (to which lawes onely we Christians are this day bound,) is any such punishment determined, & there∣fore may the ciuill Magistrate, (if it so seeme good vn∣to him.) chaunge the vsuall punishment of theeues, (which with vs is to bee hanged,) and cause them to be cast into the sea with milstones about their neckes: and the same may bee saide, of the punishment for other malefactors.

Thirdly, wee must repute this for an vndoubted foundation; vz. that the end, for which Gods Law ap∣pointeth malefactors to be punished, is the publike peace and good of the whole common-weale: for this is so euident by the course of the whole scripture, as it can neither with learning nor reason bee denied.

Out of these three foundations, thus firmely stabli∣shed, these two Corrolaries, may euidently bee infer∣red. First, that whensoeuer, any member of the com∣mon weale committeth any capitall crime, for which hee ought to die by the law, whose life for all that is

more profitable to the weale publike then his death; in such a case the Prince may pardon such a malefactor, & not thereby sinne at all: which thing christian Princes seeme to respect, when in the time of warres, they set such felons at libertie, as are able to doe seruice in de∣fence of the Realme. Secondly, that when any male∣factor is so mightie, or so strongly seated, or otherwise so vnfit to bee dealt withall, that the Prince cannot without probable daunger of his royal person, or great domage to the common-weale, punish the said male∣factor; then in such a case, the prince may tollerate such a malefactor vnpunished, and not thereby sinne at all. These foundations and illations being once well vn∣derstoode and remembred, the conclusion (though of great moment,) cannot but be manifest and cleare. Ne∣uerthelesse, I will adioyne some sound reasons hereun∣to, for the better confirmation of the same.

The first reason.

It is a common and generally receiued Maxime, as∣well of all Ciuilians as Diuines; vz. Lex non obligat vl∣tra intentionem legis-latoris. The law doth not bind a mā beyond the intention of the Law-maker. Whereupon I inferre first, that the ciuill magistrate may dispence with his owne Law. Secondly, that the Prince being Gods Minister, may tollerate or pardon malefactors, when, and so often as such tolleration or pardoning tendeth to the common good of the publike-weale, the reason is euident, because the intention of God the su∣preme Law-maker, was euen that and none other, whē hee appointed his ministers to punish malefactors.

The obiection.

The Prince pardoneth many times, when hee little

regardeth the common good; nay, whē his pardoning doth great harme to the publike weale, and Church of God.

The Answere.

I aunswere; first, that hee hath receiued his autho∣ritie to profite the Church and common-weale, and not to doe hurt vnto the same. Secondly, that it is suf∣ficient to satisfie the consciences of subiectes, (who haue not to examine their Soueraignes secret affaires, and to enquire what causes he hath to deale thus, and so in matters of State) that the Prince may in some ca∣ses vpon some causes, either tollerate sin vnpunished, or pardon malefactors. If the case were otherwise, eue∣ry subiect might soone take occasion to rebell If the Prince abuse his authority, he must render an account to God for the same.

The second Reason.

Prodigalitie is a great sinne, condemned aswell in Philosophie, as in Diuinitie; it neither will nor can bee denyed. It is the exceeding extreame of the vertue libe∣ral••tie. This notwithstanding all Christian Kinges (for ought that I can learne) haue euer tolerated the same vnpunished at least in some degree; neither were they for such tollerations reproued at any time by any an∣cient approued writer, or learned Father whatsoeuer. Which doubtles is ••nd ought to be so reputed an ar∣gument of no small importance, For although Em∣porour, Kinges and Monarches, may and doe sinne as∣well as others of meaner calling; yet neither did they, neyther euer can they liue vnreproued; if at any time they sin notoriously, either by stabilishing wicked lawes

publikly, or by suffering their subiects to make hauock o•• Gods lawes dissolutely. For God can raise vp chil∣dren of stones to Abraham; and neither is hee, nor e∣uer will hee be destitute of faithfull couragious seruāts, who wil constantly, and without all feare, reproue all such as contemne his holy lawes. He hath watchmen on the wals of his Ierusalem, who will crie out against sin continually, and neuer keepe silence day nor night. He is not without his Elias, that will stoutely reproue all wicked Achabs, Hee hath in store a Daniel, to con∣demne all naughtie Iudges, and to acquit his faithfull [ 18] Susannes. Hee will finde a Prophet to exclame against idolatrie, and to teach euery Ieroboam his dutie. He can and wil prouide an other Iohn Baptist, to speake bolde∣ly to all bloody Herods. And yet in so many hundred yeares, such tollerations haue neuer beene reproo∣ued to my knowledge by any auncient Father, or o∣ther learned VVriter. The reason hereof I take to bee this; because if this sinne were punished, there woulde rather hurte then benefite insue there∣vppon.

The third reason

It is a generall Maxime receiued not onely in Diuinitie, but in Philosophie also; Ex duobus malis, minus eligendum. Of two euils the lesser is to bee chosen, that is to say; when two euils con∣cur, so that both cannot be auoided, but that ne∣cessarilie the one must happen; then it is not onclie not sinne, but godlie VVisedome, and Christian Policie, to preuent, and auoide the greater euill, with permission and tolleration of the lesse. For ex∣ample sake; it is euill for a man to cutte off his owne arme or legge, if the thing bee absolutely, and simply considered in it selfe, yet to cut it off

least the whole bodie putrifie or perish; is a very lawful act. Which thing all Christian Princes, & Monarches seeme to respect, when they in sundrie cases doe tolle∣rate sinne vnpunished. The blessed man Moses, so high∣ly renowned in holy writte, pardoned great malefactors in the hainous crime of diuorce, and this tolleration he graunted to auoide a greater euill; that is to say, least the Iewes vpon euery light cause should poyson those wiues whome they did not loue, for that such light di∣uorcement was onely permitted, but neyther by God, not by Moses approued; I will demonstrate by these important and insolluble reasons. First, because these are Christes owne wordes; Moses because of the harde∣nesse of your heartes, suffered you to put away your wiues, but frō the beginning it was not so. Secondly, be∣cause the mariage was indeed after suchlight diuource, vnlawfull by the law. For thus writeth Saint Paul; know yee not Brethren (for I speak to them that know the Law) that the law hath dominiō ouer the mā, as long as he liueth; for the wo∣mā which is in subiection to a mā, is bound by the Law to the Mā, while hee liueth; but if the man be di ade, shee is deliuered from the law of the man: So then if while the man liueth, shee take an other mā, she shal be called an adulteresse. Out of these words I note first, that marriage cannot bee dissolued, during the life of the former husband. I note secondly, that this was so euen in Moses law; because Saint Paul saith hee speaketh to them that knew the law, I note third∣ly, that to be married after diuorce for a light cause, during the life of the former husband is plaine & flat adulterie. I therefore conclude, that to tollerate sinne vnpunished vpon good cause, is no sin at all. This mine assertion of diuorcement is not onely grounded vpon the Scriptures, but also confirmed by the holy fathers, and best approued writers of this our age.

The 4. Reason.

We haue many examples in the holy scriptures of blessed mē that often pardoned Malefactors, & to this day were neuer reproued for the same. King Dauid par∣doned wicked Nabal at the peticion of his vertuous wife Abigal. The same king Dauid pardōed Abner, who rebelled against him for the house of Saul. The self same king tolerated Ioab in his naughtie dealings, albeit he was more then a little offended with his manners. The same king tolerated cursed Shemei, thogh he cōmanded his son Salomon to do execution on thē both, after that him selfe was dead. The holy Patriarch Iacob did not punnish his sonnes Simcon and Leuie with death, for their cruell murder done vpon the Sechemites; though he had plaine regall and supreame authoritie ouer thē S. Austen did verie often intreate the Emperours most earnestly and humbly, not onely to pardon heretickes, but also the Circumcellions most naughtie people and cruell murderers. The blessed virgin Mary was found to bee with child by the holy Ghost, befor S. Ioseph & shee came together. Whereupon Ioseph, because he was a iust man, and would not put her to open shame, was minded to put her away priuily, thus reporteth holy writ. Out of which wordes I note first, that Ioseph knew the holy virgin to be with childe. Secondly that he knew him selfe not to be the father of the childe. Thirdly, that Ioseph knew no other, but that Mary his wife was an adultresse. Fourthly, that he thoght to haue put her a way secretly, so to keepe her from shame & punishment. Fiftly, that Ioseph was euen then deemed iust, when the sought and thought to keepe her from shame; although in his iudgement, she deserued death by the law. Yea, S. Paul him selfe made intercession to Philemon for his seruant One simus, though he had beene a vagabond and theuish fellow.

The first obiection.

No inferiour hath power to alter the law of his su∣periour; and consequently, man cannot pardon or tole∣rate malefactors, whō god appointeth to be punished

The answer

I answer; first that precepts deliuered to vs in holy writ are of two sorts. Some affirmatiue, other some ne∣gatiue. The negatiue bind vs at all times euery houre, and in euery place; but the affirmatiue, thogh they be very apt to bind, yet doe they not actually bind vs, saue then onely, when the due circumstances of times, places, and persons occurre, hereupon it commeth that it is neuer lawfull to steale, neuer lawful to commit ad∣dultery, neuer lawfull to beare false witnes, neither at any time, nor in anie place. the reason hereof is this, because these precepts be negatiue. This notwithstand∣ing, it is sometime lawfull to omit the precepts affirma∣tiue. For exāple it is necessary vnto saluatiō, to mak con∣fession of our faith; and yet we doe and may often o∣mit the same, for that it is an affirmatiue precept. And therfore Christ willeth vs not to giue that which is holy to dogs; neither to cast our pearles before swine; leaste they tr••ad thē vnder their feete, and turne againe & al to rentus. But wee are then bound to confesse our faith when either it tendeth to the glorie of God, or to the good of our neighbour; so that if such confession were not then made, either god should be dishonoured, or our neighbour scandalized. So it is Gods cōmandemēt to giue him thy cloake, that will sue the at the law, and take away thy caate; & yet maiest thou at sundry times for sundry respects, denie him both thy coate and thy cloake. So it is Gods commaundement to go with him myles twaine, that will compell the to goe one; and yet maiest thou sundrie times denie lawfully, to goe with him either more or lesse so it is Gods com∣maundement,

neuer to turne away frō him, that would borrow money of the, or any other goods; and yet mai∣est thou sundry times for sundry respects, denie to lend either thy mony or other things. All which and other the like haue this onely ground and foundation; vz. That they are precepts, affirmatiue, which neither bind at all times, nor yet in all places. For precepts af∣firmatiue, to vse schoole-tearmes; obligant semper sed non ad semper.

Secondly, that the ciuill magistrate had authoritie, to mitigate many punishmēts ordained for malefactors, euen in the time of the old testamēt. For thogh he were appointed to punish them that vsed false weights and measures; yet was that punishment to be determined according to the quantitie and qualitie of his trespasse. The partie that was worthy to be beaten, receiued many or few stripes, at the descretiō of the magistrate. M. Caluin a most zealous patron of pure religion, hath these expresse words; Impunè quidem vt liceat statui potest, sicut in arbitio Principis est panas remittere. Verum vt vitiosum non sit, quod vitiosum esse natura dictat, nullus legislator efficiet

A law may be made, that he which doth it shall not be punished; euen as it is in the princes pleasure, to par∣don and releasse the punishment. But that that be not sinfull, which nature it selfe sheweth to be sinfull; no law maker can effect or bring to passe. Thus writeth this learned man, granting freely as we see; that the magistrate may sometime vpon good causes, tolerate those sinnes vnpunished, which gods law doth sharply reproue and speake against, where the reader must ob∣serue with me, that Maister Caluin speaketh of the most notorious sinnes of incest; and consequently that hee graunteth power vnto the magistrate, to pardon what Malefactors or sinnes, so euer: For though the magistrate can neuer make that

to be no sinne, which Gods lawe prounceth to bee sinne; yet (saith M. Caluin) the magistrate may make a law, that the same sinne shal not be punished, Which doubtles is the selfe same doctrine, that I do teach for the present.

Thirdly, that by the law of the New Testament, the Prince is onely charged in generall tearmes to punish malefactors, and that for the common good of his faithfull people, in regard whereof, hee may lawfullie cease from punishing them; when the common inten∣ded good of his subiectes, eyther can not, or wil not insue thereupon. For if Kinges should at all times pu∣nish all malefactors; the Church of God would often be depriued of most excelent and profitable members. For which respect our Sauiour himselfe telleth vs, that when the tares cannot be seuered from the good corn, vnlesse both be pulled vp together; then may they tol∣lerate the tares or weedes with the good corne, vntill the time of haruell. As if hee had saide: when the wicked cannot be punished, but with great domage to the godly; then may the Magistrate tollerate such ma∣lefactors vnpunished, and not thereby sinne at all. Therefore saith the holy father S. Austen; that Christes Church doth tollerate many thinges, which he neither doth nor can approue. And the same holy Father in a large and learned discourse against Parmenianus, shew eth plainely vnto the Reader; that the notorious sins must then be anathematized, when there is no daun∣ger of schisme to enfue thereupon, not otherwise; least that turn to the churches harm, which was intended for her good. Amongst many other godly sentences, (which for breuitie I here omitte, these are his ex∣presse wordes. In hac velut angustia quaestionis, non aliquid nou••m aut insolitum dicam, sed quod santas obseruat ecclesiae, vt cum quisque fratrū, id est, Christianorū intus in ecclesiae socie∣tate constitutorum, in aliquo tali peccato fuerit deprehensus, vt

anathemate dignus habeatur, fiat hoc vbi periculum schismatis nullum est. Sequitur nam & ipse dominus cum seruis volentibus zizania colligere, dixit, sinite vtraque crescere vsque ad messem, praemisit causam dicens, neforte cum vultis colligere zizania eradicetis, simul & triticum: Vbi satis osteudit, cum metus iste non subest, sed omnino de frumentorum certa stabilitate certa se∣curitas manet, id est, quando ita cuiusque crimen notum est om∣nibus, & omnibus execrabile apparet, vt velnullos prorsus, vel non tales habeat defensores per quos possit schisma contingere, nō dormi••t seueritas disciplinae. Sequitur, cum vero idem morbus plurimos occupaucrit, nihil aliud bonis restat, quam dolor & gomitus.

In this intricate question, I wil say no new or strāge thing, but euen that which the soundenes of the church obserueth; that when any Christian, which in the so∣cietie of the church, shalbe taken with any such offéce, as shall deserue an anathematization, the same be done where there is no perill of schisme. For our Lorde himselfe, when hee saide to those that woulde gather the tares, suffer them to grow vntill the haruest; pre∣mised the cause, saying, least while yee desire to gather the tares, ye plucke vp also the wheate. VVhere hee sheweth sufficiently; that when there is no such feare, but there abideth securitie enough of the stabilitie of the corne, that is, when euerie mans crime is so appa∣rant and execrable to all, that eyther it hath none at al, or no such patrones as are able to raise vp a schisme, then may not the seueritie of discipline bee a sleepe. But when many haue the same disease, there resteth nothing for the godly, but sorrowe and lamentation. Thus writeth this holy Father; Out of whose wordes we may gather euidently, that the magistrate may law∣fully tollerate sinne and sinners vnpunished, when by their punishment more hurt then good would ensue to the Church. VVhich selfe same doctrine, King Dauid full of the holy Ghost, deliuered long afore

him, when he vttered these wordes; Know ye not, 'that there is a Prince, and a great man fallen this day in Israel? and I am this day weake and newly annointed King, and these men the sonnes of Zeruiah be too hard for me; the Lord reward the doer of euill, according to his wickednesse. Loc, the blessed King spared two most cruell murderers, Ioab and Abishai his brother; and this hee did onelie for this end, least by their punishment, greater hurt should haue come vnto his Kingdome.

The 2. Obiection.

Achab the King of Israel was punished with death because he granted pardon to Benhadad King of Aram. So King Saul was deposed from his kingdome, for that he spared Agag king of the Amalekites.

Answere.

I aunswere; first, that Achab was precisely designed by God himselfe, to doe execution vpon Benhadad. And so was also Saul appointed in precise tearmes, to put King Agag to death. Secondly, that in the New Testa∣ment, Princes haue no such special commaundemēt, but are only charged in general to punish malefactors. Thirdly, that they were extraordinarie precepts, giuen to these Kinges extraordinarilie, not to bee done gene∣rally to all malefactors, but to two notorious persons in speciall; and consequently, that no generall Law can bee grounded thereupon. Fourthly, that affirmatiue precepts binde not in euery season, but when the due circumstances of time, place and persons, and the com∣mon good of the faithfull, shal so require, as is alreadie proued. For otherwise, I see not how Saint Paul can bee excused, who made earnest sute to Philemon, to pardon his wicked seruant Onesimus, who vniustly had gone a∣way out of his seruice. And the like may bee saide of

Saint Austin, who so ofiē made intercession to the prin∣ces of Africa, to pardon the Donatists and Circumcel∣lions; who did not onelie disturbe religion, but also spoiled the Christians of their lawfull goodes. Yea, it was the vsuall custome of the Iewes, (as the holy gos∣pel beareth recorde,) to see some one Prisoner at liber∣tie euerie Easter; which custome is not reproued in any place of holy writ. Fiftly, that it is a case so cleare by Saint Paul, that male factors may sometime bee par∣doned, as it is without all rime and reason to denic the same. For what can be a greater offence, then such for∣nication, as is not once named among the Gentiles; to wit, that one should haue hi fathers wife. And yet when the partie that did this horrible fact, seemed to giue signes of true remorse; Then Saint Paul himselfe pardoned him, and willed the Corinthians to doe the same. So did the Fathers of the Elebertine Councel, pardon the vsurers of the Laical sort; when they pro∣mised to surcease from vsurie, and to deale no longer therewith. And this Coūcel was celebrated aboue one thousand and two hundred yeares ago. Yea, the most famous Councel of Nice gaue pardō to such male∣factors, as scarse deserued the same any way. I therefore conclude, that it is lawfull for Kinges, Emperours, and other independant Magistrates, to tollerate or pardō malefactors vnpunished, when and so often as the same shall tend to the good of the common weale; wherein Subiects are to obey, and not peremptorily to iudge, or curiously to examine, and enquire.

Soli Deo gloria.

Notes

• Uide su. ca. 8. aphoris. 3. in resp. ad 2. obiect.
• Ioh. 19. 30. Rom. 10. 4. Luke. 24. Heb. 7. v. 12.
• Aug ad Poll. de adult. con∣iugijs, tom. 6.
• August. ad Pollen. lib. 2. ca. 4. tom. 6.
• Heming in enchirid pag. 156.
• Cyrilius in Leuit. ab 11. Lev. 20, 10 Deut. 22, v. 22.
• Musculus in locus de legib. pag
• Caluin. in instit. lib. 4. cap. 20. Sect. 14. 15. 16.
• Rom. 2. 9. Rom 6. 23.
• Apoc. 17. 8.
• Mat. 25, v.
• Rom. 13. v. 3
• 1. Pet. 2. v.
• 14.
• In the down∣fall of Popery.
• Vide supra, cap. 8. aphor. 3 ob. 2.
• Caluin. in. in st••t. lib. 4. cap. 20. secti. 16.
• 1.
• Rom. 1. v. 31.
• Rom. 2. v. 14.
• 2.
• 3.
• 4.
• the first. foundati∣on.
• act. 15. v. 28. 29.
• let this point be well marked.
• The second foundation.
• Uide praeced. conclus. Vide supr. cap. 8. aphor. 3. in resp. ad 2 obiectionem
• The third foundation.
• Deut. 19. 20 1. Cor. 5. 13. 1. Tim. 5. 20 1. Cor. 8. 13. Mat 18, 6. The first cor∣rela••••e.
• The second Corollarie.
• 1.
• 2.
• 1.
• 2.
• Marke this point well.
• Christian Kinges.
• Mat. 3. 9.
• Esa. 62. 6.
• 1. Reg. 18.
• Dan. 13. 16.
• 1. Reg. 13. 2.
• 1.
• Mat. 5. 31. Mat. 19. 7.
• 2.
• Deus. 24. v. 1
• Rom. 7. v. 1.
• 2. 3.
• 1.
• 2.
• 3.
• 1. Sam. 25. v. 35. 2 Sam. 3. v. 6. 22. 28. 31. 2. Sam. 3. 1. Reg. 2. v. 8. 9. gen. 34.
• vided August. epist. 119.
• mat. 1. 19.
• 1.
• 2.
• 3.
• 4.
• 5.
• in epist. ad philem.
• vide. D. Zanch in 4. cap. ad ep••es. Pag 338. et Martyr. in 2. lib. Samuel. cap. 3. pag. 200. Aquenatem. 2. 2. q. 3. art. 2. cap. Rom. 10. v 9. 10. Mat. 7. 6.
• Mat. 5. v. 40
• Mat. 5. v. 41
• Mat. 5 v. 42.
• modus lo∣quendi. Scholarum.
• Secundò. Principaliter.
• Deut. 25. v. 2. 3. 13. 14.
• Caluin. in leu. 18. v. 6. Pag. 345.
• Tertiò prin∣cipaliter.
• Mat. 13. v. 3••.
• Aug. ut ep. 110. tom. 2.
• August. cont. epist. Parme. lib. 3. cap. 2. tom. 7.
• 2. Sam. 3. v. 38. 39.
• 1. Reg. 20. 1. Sam. 28. 1. Sam. 15.
• 1.
• 1. Reg. 20. 42. 1. Sam. 15. 3
• 2.
• 3.
• 4.
• In Epist. ad Philem.
• Luke 23. v. 17.
• Mat. 27. v. 15.
• Mar. 15. 6.
• 2. Cor. ••. v. 8. 9. 10.
• Conc. Elebcr, can. 20.
• Conc. Nicen. can. 11.