Ductor dubitantium, or, The rule of conscience in all her generall measures serving as a great instrument for the determination of cases of conscience : in four books / by Jeremy Taylor ...

In what cases the Criminal is to be his own executioner.

1. When to the execution of the punishment appointed by the law there is no action requir'd on the part of the guilty person,* 1.1 the conscience is bound to submit to that sentence, and by a voluntary or willing submis∣sion verify the sentence, such as are excommunication, suspension, irre∣gularity and the like. Thus if irregularity be ipso facto incurr'd, the offen∣ding person is bound in Conscience not to accept a benefice or execute an office to which by that censure he is made unhabile and unapt. If a law be made that whoever is a common swearer shall be ipso facto infamous, he that is guilty is bound in Conscience not to offer testimony in a cause of law; but to be his own Judge and executioner of that sentence. But this is not true in all cases, but with the provision of the following measures.

2. If the law imposes a penalty to be incurred ipso facto,* 1.2 yet if the penalty be moderate, equal and tolerable, the Conscience is oblig'd to a voluntary susception of it, before the sentence of the Judge, although the sentence be not privative, but executive; that is, though there be some∣thing to be acted by the guilty person upon himself. Thus if excommu∣nication be incurred ipso facto, he that is guilty of the fact deserving it, & is fallen into the sentence, is not onely bound to submit to those estrange∣ments

and separations, those alienations of society and avoidings which he finds from the duty of others, but if by chance he be in a stranger place where they know not of it, and begin Divine service, he is bound in Con∣science to goe away, to resign an Ecclesiastical benefice if he be possessed of one, and other things of the same necessity for the verification of the sen∣tence: and the reason is, because every act of Communion or office is in his case a rebelling against the sentence of the law, the verification of which depends upon himself as much as upon others: for every such person is like a man that hath the plague, all men that know it avoid him; but because all men doe not know it, he is bound in Conscience to avoid them, and in no case to run into their company, whether they know him, or know him not. Now because this does not oblige to all sorts of active executions of the sentence, the following measures are the limit of it.

3. The law does not oblige the guilty person to such active executi∣ons of the sentence which are meerly and intirely active;* 1.3 that is, which doe not include a negative, or something contrary to the passive obedience. Thus if a Traitor be sentenc'd to a confiscation of goods, & this be ipso jure incurred; the guilty person is not tied to carry all his goods to the pub∣lick treasure, but he is tied not to change, not to diminish, not to aliene, not to use them otherwise then the law permits; because if he doe any thing of these he does something against the sentence of the law, which in his case is rebellion and disobedience. He may be truly passive and perfectly obedient to the sentence of the law without hiring porters or wag∣gons to carry his goods away; and the custome of the law requires it not: but if he does aliene his goods he hath not so much as the passive obedience.

4. In punishments corporal the laws doe not proceed without the sentence of the Judge;* 1.4 except it be in the court of Conscience, which is voluntary and by choice. Thus no man is ipso jure condemn'd to be hang'd, or to be whipp'd, and no man is by any law bound to inflict such punishments on himself; because there is a natural abhorrency in such actions, and it is that odious part of the law which is so much against nature and natural affection that none but the vilest part of mankind are put to doe it unto others: & therefore because the laws doe enjoyn no such thing, the inquiry is needless, whether in such cases the Conscience be oblig'd. But this is wholly depending upon the manners of men, and the present humors of the world. Amongst some nations it was otherwise; and no question but it might be so, if by circumstances and the accidents of opinion and the conversation of the world the thing were not made intolerable. Plutarch tels of Teribasus,* 1.5 that being arrested by the officers of death he resisted with such a bravery as he us'd against the Kings enemies; but be∣ing told that they were sent by the King, he presently reached forth his hands and offer'd them to the Lictors to be bound. But this was no great matter, it was necessary, and he that is condemn'd to die by a just autho∣rity, ows to it at least so much that he resist not, that he goe to death when he is called, that he lie down under the axe when he is commanded: So did Stilico at the command of his son in law, Honorius the Emperour. It was more which was done by the Lithuanians under Vitoldus their King, who was brother to that Vladislaus famous for a memorable battel against the Turks; he commanded many to death, and they died without the

Hang-man's hand, being the executioners of their King's laws upon them∣selves. And Sabellicus tels,* 1.6 that the Ethiopians, when their King sent a Messenger with the Ensigns of Death, they presently went home and died by their own hands. And this was accounted among them so sacred an obligation, that when a young timorous person thought to have fled, his mother took her girdle and strangled him, lest he should dishonour his fa∣mily by disobeying the law out of fear of death. This was brave; but some men cannot be willing to dye, and few can well suffer it: but there∣fore it is hard that any one should be compelled to doe it to himself. Therefore the laws of Christendome are wise and gentle; and excepting that of the Lithuanian Prince, who is reported to have been a Tyrant, it is not enjoyned by any Prince or any law amongst us, that I know of. But this is not onely true in active executions, but in the passive penalties, which are very violent and extreme. Thus if a man were justly condemn'd to be immur'd and starv'd to death, he is tied to submit to it, as not to re∣bel, and by violence quit himself: but he is not tied so much as to the privative execution; that is, he is not bound to abstain from meat, if it be brought to him. Thus we find in story, of the pious Persian Lady, who to her Father condemn'd to death by starving gave her breasts to suck, and preserv'd his life; and he not at all made infamous by not dying; but had his life given as the reward of his Daughters piety.

5. Condemn'd persons are not tied to put themselves to death,* 1.7 or cut off a member with their own hands, or doe execution, by doing any action, or abstaining from doing any thing, when such doing or abstaining is the sufficient, or the principal, or the immediate killing or dismem∣bring. But to the under-ministeries they are ti'de, which cannot be done without them; that is, they are tied so far to act, as without which they cannot suffer: and this is to be extended even to the principal and imme∣diate act of killing, if they onely ordinarily can doe it. Thus a condemn'd Criminal is bound to go to execution, or suffer himself quietly to be car∣ried; to lie down under the Hangman's Axe, to ascend the Ladder: and it is a great undecency of dying, and directly criminal, which is frequent enough in France, and is reported of Marshal Biron, to fight with the Exe∣cutioner, to snatch the Weapons from the Souldiers, to force the Officers to kill him, as a wild Bull or Lion is kill'd. * But a condemn'd man is also tied to drink his poyson, if that be appointed him by law; for though this be the immediate act of killing, to which ordinarily condemn'd persons are not oblig'd, yet because it cannot well be done by an Executioner with∣out his consent, or extreme violence, the guilty person is bound to drink it: the reason is, because the law must be obeyed, and at least a passive obedience is to be given to the severest of her sentences; and the passive∣ness of a man is to be distinguish'd from the passiveness of a beast; that which cannot be avoided, must be born well: and therefore if a man be banished, he must go away, and not be dragg'd; and he that so resists the laws, that he forces her Ministers to hale the Criminal to death like an un∣willing Swine, deserves the burial of an Asse or Dog. But this alwayes must suppose the laws to be just, and the power competent; for else the suffering person may consider, whether the quiet submission to it be not a verification of the sentence, or of the authority, though even in such ca∣ses it is not the Hang-man that is unjust, or to be resisted, but the Judge or the laws; and therefore they are to be protested or de∣clar'd

against; for that is all which is left to be done by the oppressed person.

6. When the punishments are principally or meerly medicinal,* 1.8 the Conscience is bound to a voluntary execution of the sentence, if the law requires it. For then the laws are precepts of institution and discipline; and they are intended as mercies to the man, as well as to the publick; and of mercy every man may very well be Minister. It hath in it no un∣decency for a man to mingle his own severe potion, or let himself blood, or lance an Ulcer; and there is no more in the medicinal punishments of the law. Thus the laws can command us to fast, to wear sackcloth upon the bare skin, to go barefoot, to watch all night upon a solemnity of ex∣piation, to inflict disciplines, and the like; and for these we are to expect no other process but the sentence of the law, no Judge but our Con∣sciences, no Executioners but our selves. This relies upon the former rea∣sons, and the meer authority of the law, and the nature of the thing free from all objections.

7. All sentences of law which declare a fact to be void,* 1.9 or a charge and expences to be lost, or a priviledge to cease, are presently obligatory to the Conscience. Irrita prorsus ex nunc, & vacua nunciamus, is usual in the stile of laws: & sit ipso jure irritum & inane; & careat omni robore firmitatis, non obtineat vires; let it be of no force, let it not prevail, let it be void, let him want all priviledge, all honour, dominion, action, or pro∣fit. For these and the like words, say the Logicians, have the force of an universal sign, and doe distribute the Noun that is governed by the Verb; so they speak; that is, it signifies and hath force in every particular, and in every period of time; let it want force, that is, let it want all force, that is, be of no use at all; careat is as much as omnino, penitus, prorsus careat.

8. But these particulars suffer one limitation.* 1.10 A man is not bound to suffer the penalty of the law before the sentence of the Judge, though the fact be sentenc'd and condemn'd ipso jure, if the fact be made publick, and brought before the Judge: Because he taking it into his cognisance, re∣vokes the former obligation, by imposing a new; by changing the method of the law, and lessening the expectation. Thus by the laws Ecclesiastical, which were antiently of force in England, and are not yet repeal'd, Not••∣rius percussor Clerici, he that openly or manifestly strikes a Bishop or Priest, is ipso jure excommunicate; and to this sentence the guilty person is bound to submit: but in case he be brought before the Criminal Judge, and there be solemn process form'd, he may suspend his obedience to the law, because the Judge calls him to attend to the sentence of a man.

9. But yet this is also so to be understood to be true in all exceptis sententiis irritantibus,* 1.11 excepting sentences of the declaring actions to be null, or priviledges void. For in these cases, though the Judge doe take into his cognisance the particular fault, and give a declarative sentence of such a nullity and evacuation, yet the action does not begin to be null, or the priviledge to cease from the sentence of the Judge, but from the doing of the fault, and the sentence of the law: and therefore if a question arises, and the Judge declare in it, the nullity is onely confirm'd by the Judge, but it was so by the sentence of the law. Now the reason of the difference

in the case of nullities and evacuations from other cases, is, because that which is not, hath no effect, and can produce no action; and as a Citisen told the people of Athens, who upon the first news of Alexander's death would have rebelled, Stay (sayes he) make no hast; for if he be dead to day, he will be dead to marrow: So if the Judge declare that such an acti∣on was null, it was null all the way; if he sayes it be dead now as a pu∣nishment of the fault, it was dead as soon as the fault was done; for it died by the hand of the law, not by the hand of the Judge. In other things the limitation is to be observed.

10. And this also holds,* 1.12 in case that it be upon any account necessary that the Judge give a declarative sentence: for sometimes in regard of others, the Judge must declare such a person excommunicate, or depriv'd, or silenc'd, or infamous, that they also may avoid him, or doe their respe∣ctive duties. But although the guilty person be in conscience regularly ob∣lig'd before that declarative sentence, it being nothing but a publication of what was in being before; yet it being a favourable case, and the law not loving extremities and rigours of animadversion, it is to be presumed that the law gives leave to the guilty person to stay execution till publication. Because no man is bound directly to defame himself; which he will hazard to doe, if he executes the sentence upon himself before the Judge calls others into testimony and observation of the sentence. But though the sentence may upon favourable conditions be retarded, it must at no hand be evacuated. Therefore if the Judge meddle not, the man is left to the sentence of the law. And it is in all these particulars to be remembred, that the law is a mute Judge, and the Judge is a speaking law. It is the saying of Cicero;* 1.13 and from thence is to be concluded, that when the Judge hath spoken, he hath said no new thing, and he hath no new authority; and therefore if the law hath clearly spoken before, she hath as much au∣thority to bind where she intends to bind, as if she speaks by her Judges.

These considerations and this whole question is of great use in order to some parts of repentance,* 1.14 and particularly of restitution. For if a law be made, that if a Clerk within twelve months after the collation of a Parish-Church be not ordain'd a Priest, he shall ipso jure forfeit his Eccle∣siastical Benefice; if he does not submit to the sentence, and recede from his Parish, he is tied in Conscience to make restitution of all the after profits which he receives or consumes. So that it hath real effect upon Consciences, and the material occurrences of men.

But then for the reducing of it to practice,* 1.15 I am next to account by what signs we shall know when it is sententia lata à jure, when it is lata ab homine; when it is lata, and when ferenda; that is, when the Criminal is to attend the sentence of the Judge, and the solennities of law and execu∣tion by the appointed Officer; and when he is to doe it himself, by his own act or positive submission upon the sentence of the law.

Notes

• * 1.1

  14.
• * 1.2

  15.
• * 1.3

  16.
• * 1.4

  17.
• * 1.5

  De supersti∣tione.
• * 1.6

  Lib. 2. En∣nead. 1.
• * 1.7

  18.
• * 1.8

  19.
• * 1.9

  20.
• * 1.10

  21.
• * 1.11

  22.
• * 1.12

  23.
• * 1.13

  Lib. 1. Offic.
• * 1.14

  24.
• * 1.15

  25.