Several miscellaneous and weighty cases of conscience learnedly and judiciously resolved / by the Right Reverend Father in God, Dr. Thomas Barlow ...

THE CASE OF MURDER.

The Case of MURDER.

GEN. ix. 6. An Objection from the said Text, That Kings have not power to par∣don Murder, Answered.

FOR the clearing and fur∣ther Evidence of the truth of this Position, [That Kings and Supreme Powers may in some Cases pardon Murder] there remains one (and for ought yet appears, but one) Objection to be answered; 'tis grounded on the Law given to Noah after the Flood, and about 796 years before the Mosaical Law, which says, that the Murderer shall surely be put to death: The Law given to Noah,

was in these words; He that sheds man's blood, by man shall his blood be shed. Wherein God Almighty ap∣points death to be the punishment of Murder. Now if it be granted, that the Mosaical Law binds only the Jews, to whom it was given; yet this Law given to Noah, and in him, to all his Posterity; must bind Jews and Gentiles too, who are all equally his Posterity.

Sol. In answer to this Objecti∣on, and the reason of it, (which no way proves what is pretended) I say,

1. It is confess'd, that this Law given to Noah, did bind him and all his Posterity. There were three men (and but three) who could make Positive Laws, to bind all the World. 1. Adam. 2. Noal. 3. Our Bles∣sed Saviour. Whatever Laws any of them made, (after sufficient Pro∣mulgation) oblig'd the whole World;

and what Laws God gave to Adam or Noah, all such Laws, (after suffici∣ent Promulgation) oblig'd their Poste∣rity; that is, the whole World; (for as before the Flood, all the men in the World came from Adam; so after the Flood from Noah; and it must be confess'd, that although this Law given to Noah, does not bind many, to whom it was never pro∣mulg'd or made known; yet God has sufficiently made it known to all Jews and Christians, in the holy Scriptures; and therefore we must confess our selves under the Ob∣ligation of it.

2. It is certain, that this Law given to Noah, was (as all Penal Laws are) a Positive Law; and that all such Laws are capable of Dispensa∣tion; and that in several Cases, (without any dispensation) their Obli∣gation ceases: of which more anon.

3. It is certain, that by these, words [By man shall his blood be shed] By man there, the Magistrate is meant, who had Jus Gladii, Power of Life and Death; and so Authority to condemn and execute a Murderer; which no Private Per∣son had, or could upon any just Grounds pretend to.

4. When it is said, That the Murderers blood shall be shed by man: The Proposition is not Universal, that every Murderer shall be put to death. For if Noah, or any Supreme Power had been a Murderer, (as even David the best of Kings was) he could not by this or any other Law be put to death. 1. Because it is evident that the Supreme Power has no Su∣perior, and therefore none to pu∣nish him, especially not with death, the greatest Punishment man can suffer. 2. Nor could he do it him∣self, for although Kings and Su∣preme

Powers have Authority to take away other mens lives, (when they are Capital Offenders, and do things worthy of death) yet they can∣not take away their own; 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, or Self-murder, being in no case lawful. 3. And as they could not without sin and great Impiety, kill themselves; so they could not give Commission to any to do it. It be∣ing impossible that I should give another Power to do that, which I had no power to do my self.

5. And as this Law extends not to Supreme Powers; whose Blood cannot be shed by man, although man's Blood have been shed by them; so it extends not to all Subjects and In∣ferior persons, who have Lawful Magistrates. This the infinitely wise and just Lawgiver (God him∣self) has told us in the Text, That if a Master had slain his Man-servant, or Maid-servant, and they die immediate∣ly

under his hand, then he was to be punish'd; but if that Servant lived a day or two, (24 hours, say the Rabbins, the Jews accounting 12. hours for a day) his Master who kill'd him, was not to die. So that, though a Master had shed the blood of his Man-servant or Maid-servant, yet his blood (by this Law given to Noah) could not be shed for it.

6. Other Cases there may be, and are, wherein a man may shed man's blood, and yet his blood may not be shed for it. For instance, The Law required two Witnesses to put any Murderer to death; and therefore if Sempronius had shed Titius his blood, yet if there was but one Witness legally to prove it, Sempronius his blood could not be shed by any man.

By the Premisses I think it is e∣vident, that this Law given to Noah, [He that sheds blood, by man

shall his blood be shed] is not so uni∣versally obligatory as some may think it is. Seeing there may be many persons and cases, wherein man's blood may be shed, and yet he who did it, cannot be put to death for so doing. The Query then will be, Whether the Supreme Power, who (as to have his blood shed by any man) is not under the Obligation of this Law, may not (in some cases) pardon a person condemn'd for Mur∣der? For a distinct answer to this Query it is to be considered;

1. That it is certain, that this Law given to Noah (nor any Law de poenis) is not a Natural or Moral Law; (all which Laws were ab Origine, at the Creation, writ in the Heart of Adam, and from him in the Hearts of all his Posterity, and their Obligation eternal and indispensable). But it was a positive Law given to Noah 1658. years after the Creation.

2. It is certain, That all such Positive and Penal Laws, are capa∣ble of Dispensations; and many Cases may happen, in some times and circumstances, (of which the Supreme Power is the only, or (at least) the Supreme Judge) wherein the Obli∣gation of such Laws ceaseth; so that no man is bound to execute or under∣go the Punishments appointed by those Laws. That this may evidently appear I shall give some few In∣stances:

1. It was a Divine Positive Law, that all the seed of Abraham should be Circumcised the eighth day on pain of being cut off from his People: And yet the Obligation of that Divine Positive Law ceased, for forty years, while they wander'd in the Wilderness; and yet Moses, their Supreme Power, did neither Punish (according to the Letter of the Law) nor blame them for it.

2. It was a Divine Positive Law, that they should keep the Passover on the Fourteenth day of the first Moneth; and yet there were seve∣ral Cases, wherein the Obligation of that Law ceased, so that they did not sin, though they did not that day eat the Passover: For if any one was casually unclean by touching a dead body, or if he were on a jour∣ney, &c. the Obligation of that Law ceased, (as to him) and he sin'd not though he did not eat the Passover, on the day appointed by the Law.

3. The Sanctification of the Sab∣bath (as to that particular day) was injoyn'd by a Divine Positive Law; and (by that Law) it was capital to violate the Sabbath, or do any of our own Work; the Worship of God Almighty being the proper and only work of that day: And yet it is certain (and on all sides confess'd) that in many Cases the Obligation of

that Law ceaseth, so that we may lawfully do that which otherwise to the Jews was Capital. If an Ene∣my invade our Country, or a City be set on fire on the Sabbath, or our Lord's day, we may lawfully take Arms to defend our Country; and (the Church and Divine Service left) make haste and labour hard to quench the fire, and save the City. Now as to the aforementioned Divine Positive Laws, there may be many Cases, wherein their Obligation cea∣ses, so that the Punishment other∣wise required by those Laws may law∣fully be pardoned. So in this Law gi∣ven to Noah there have been, and may be several Cases, wherein that Law does not bind ad Poenam, and so the Murderer may lawfully be pardon'd.

3. And it is further to be consi∣der'd, that this Law (de Homicidio) given to Noah, does neither ex∣pressly say, nor by any good consequence

intimate, that the Supreme Power shall not (in any Case) pardon a condemn'd Murderer: It only de∣clares death to be the just reward and punishment of Murder; but it does not say, that it must necessarily be always executed; so that no Pardon, in no case is to be admitted.

4. And it is certain, (and in our present case more considerable) That Jacobs two Sons, Simeon and Levi, were guilty of Murder, and yet were pardon'd, notwithstanding the Law given to Noah: Sure it is, that they were neither sentenc'd nor put to death for their Murders; but long after went down into Egypt with Jacob their Father, and died there. Though they had impiously and abundantly shed Man's blood, yet their blood was not shed for it. Tho Jacob their Father, and Isaac (who was then living) were the Supreme Powers in the then Church of God,

(consisting in the seed of Abraham) and had power to do it. Nor could those Patriarchs (Isaac and Jacob) be ignorant of the Law given to Noah, seeing Noah himself lived till the fifty seventh year of Abra∣ham, and died only forty three years before Isaac's birth. Now, considering the persons of these two great Patriarchs, that they were Prophets, men of exceeding Piety, and beloved of God; we may be sure they would not have trans∣gressed that Law given by God to Noah, if they had believed that the Obligation of it was such as excluded all possibility of Pardon. In short, if those pious Patriarchs might pardon Murder, then, I desire to know why Supreme Princes (in some cases) may not pardon it now?

5. Lastly I ask, Did that Law given to Noah, bind David and the Jews in his time, or did it not? If

not, how comes it to bind us now, above 2700 years after David's death? If it did bind David then; so as no pardon was to be permitted, or granted to a Murderer, it is not probable that David (a Prophet and the best of Kings) would have transgress'd that Divine Law, and pardon'd Absolom. Especially if we consider, that his other known sins (as Murder, Adultery, Numbring the People, &c.) are confess'd by him; and in Scripture mentioned as his sins; but his pardoning Absolom, is no where in Scripture confess'd by him, or laid to his charge, as a transgres∣sion of any Law. Sed manum de Ta∣bula.

I desire you to ask those, who made the former Objection against the King's power of pardoning Murder from the Law given to Noah, and think the Laws given to Noah still Obligatory; How it comes to pass

that in the same place, the first Law given to Noah, is a Prohibi∣tion to eat any Blood (which is con∣firm'd by Moses, and no where ab∣rogated;) And yet all Papists and Protestants eat Blood, notwith∣standing that Law of God to Noah forbidding it. I desire to know of the Gentleman (who made the Ob∣jection, which I hope I have pro∣bably answer'd) why the second Law given to Noah (Gen. 9. 6.) about Murder, should be binding, and yet the first Law (Gen. 9. 4.) against eating Blood, should not be bind∣ing too. He who can and will solve me this doubt, will do me a kindness, which (if any) few can. I am,

Your Faithful Friend and Servant, T. L.

Notes

• Object.
• Gen. 9. 6.
• Numb. 35. 3••.
• Numb. 35. 30.
• Exod. 21. 20, 21.
• Joh. 11. 9.
• Numb 35. 30.
• Deut. 17. 6.
• Gen. 17. 14.
• Josh. 5. 5, 7.
• Exod. 12. 6.
• Numb. 9: 6, 10:
• Exod. 31. 14, 15.
• Gen. 34. 25.
• Gen. 49. 6.
• Query.
• Gen. 9. 4.
• Levit. 17. 10.