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 ...

RULE II. Penal laws doe sometimes oblige the guilty person to the suffering the punishment, even before the sentence and declaration of the Judge.

THat this is true concerning Divine Laws is without peradventure:* 1.1 not onely because the power of God is supreme, meer, absolute, and eternal, and consequently can oblige to what, and by what measure, and in what manner, and to what purposes he please; but also because we see it actually done in the laws and constitutions both Mosaical and Evangelical.

He that strake out an eye or tooth from a servant was bound to give him his liberty:* 1.2 that is,* 1.3 as his servant was a loser, so must he that caused it; the man lost his tooth, and the Master lost the man; he gains his li∣berty that lost an eye. Now that this was to be done by the Master himself without compulsion from the Judge, is therefore more then probable, be∣cause God who intended remedy to the injur'd servant had not provided it, if he left the matter to the Judge, to whom the servant could have no recourse without his Master please; and if he give him leave to goe, it is all one as doing of it himself, for he that gives leave that himself be com∣pell'd, first chuses the things, and call is in aid from abroad to secure the thing at home. But therefore God bound the conscience of the man, tying him under pain of his own displeasure that the remedy be given, and the pe∣nalty suffered and pai'd under the proper sentence of the obliged criminal.

To the same purpose was that law made for him that lies with a wo∣man in the days of her separation,* 1.4 he shall be unclean until the evening;

Now that this was not to be inflicted by the Judge, but that the guilty per∣son should himself be the executioner of the penalty, is therefore certain, because by another law concerning the same legal uncleanness it was de∣creed, that the fact shall be capital,* 1.5 that is, if it come before the Judge: of which I have already given account.

Thus also God imposed upon him that eat of the holy things unwit∣tingly,* 1.6 the burden of paying the like, & a fifth part besides for punishment of his negligence and want of caution.* 1.7 This himself was to bring, toge∣ther with the price of redemption or expiation. Now this being done against his will, might also be done without the observation of any other; and yet upon the discovery he was thus to act his own amends and pe∣nalty.

And indeed the very expence of Sacrifices,* 1.8 to the bringing of which the criminals were sentenc'd by the law, is sufficient demonstration of this inquiry; for it was no small burden to them, and diminution of their estates, to take long journeys, and bring fat beasts and burn them to the Lord; but to this they themselves were tied, without injunction from the Priest, or sentence from the Judge. And this appears, because they were tied to a distinct punishment if the matter fell into the Judges hand: they were in case of theft to restore four-fold:* 1.9 But if they had sinn'd in this instance or in any other that men commit, they were bound to come and confess it, and shall recompence the trespass with the principal thereof, and adde a fifth part to him against whom they have trespassed. This the Jews call confessionem super peccato singulari,* 1.10 a special confession of a sin; to which because the sinner was sentenc'd by the law, and had a lighter amends appointed him if he did it voluntary, but a much heavier if he came before the criminal Judge; it follows plainly that God tied these delinquents to a voluntary or spontaneous susception of their punishment. It was indeed an alleviation of their punishment; for the criminal was bound to confess (say the Jewish Doctors) and say when the beast goes to sacrifice, thinking as if he were going as the beast is, O Domine, ego reus sum mortis, ego commeruissem lapidari propter hoc peccatum, vel strangulari propter hanc praevaricationem, vel comburi propter hoc crimen, O Lord, I am guilty of death, I have deserv'd to be ston'd, or strangled, or burnt alive for this crime, according as the sin was: but his being the executioner of the Divine sentence in the lesser instance did prevent the more severe and in∣tolerable condemnation.

For indeed such is the mercy and dispensation of God:* 1.11 Gods law de∣crees evil to him that does evil: if we become executioners of the law of God and of his angry sentence, we prevent the greater anger of God; ac∣cording to that of S. Paul, judge your selves, brethren, that ye be not judged of the Lord. If we humble our selves, God will exalt us; if we smite, he will spare;* 1.12 if we repent, he will repent: but therefore in these cases be∣tween God and us it is so far from being a grievance, that we become executioners of the sentence decreed by law against us, that though it be an act of justice in God to oblige us to it, yet it is also a very great mercy. For as in the law of Moses, the spontaneous susception of the punishment did prevent the heavier hand of the Judge from falling on him; so in the Evangelical law, it prevents the intolerable hand of God. So that in

relation to the law of God it is an action of repentance; and repentance being a penal or punitive duty, he that was tied to bring in his own obla∣tion, to make his own amends, to confess willingly his sin, was in effect tied to nothing but to a voluntary repentance.

And thus it is also in some proportion in humane laws.* 1.13 For by these premisses thus much is gain'd, that to oblige the criminal to a spontaneous suffering of the punishment appointed by the laws of a just superior is not naturally unjust, and it is not alwaies intolerable, and it may be very reasonable, and it may be a design of mercy, or at least a very apt ministery of justice: and therefore there can be no reasonable objection against it, but that upon just account, and in just measures, and for great reason, and by the proportions of equity it may be done in humane laws.

For 1.* 1.14 Whatsoever is not against the law of Nature, nor the law of God, may be done or enjoyn'd to be done by the laws of Man; for the power of Magistrates is the next great thing to God and Nature. Now concerning this, we have security not onely from the foregoing instances, but from the law of Christ concerning divorce upon the instance of adul∣tery: the offending party looses his or her right respectively over the body of the other, and cannot lawfully demand conjugal rights. The in∣jurious person may begge for pardon and restitution; but is unjust if he require any thing as duty. The woman looses her rights of society, and the Man of superiority, in case they be adulterous; and if they doe not quit their former rights, and sit down under their own burden, and minister the sentence of God by their own hands, they sin anew: every such demand or act of dominion is iniquity and injustice, it is an act of an incompetent power, and therefore, under pain of a new sin, they must not act under it.

2. A man can inflict punishment upon himself.* 1.15 Thus Zacheus in expiation of his sins offer'd half his goods to the poor, and restitution fourfold; which was more then he did need; for if his confession and re∣stitution were spontaneous, he was tied onely to the principal, and the superaddition of a fifth part, as appears above. But he chose the punish∣ment, even so much as the Judge himself could have inflicted. Thus we read of a Bishop in the primitive ages of the Church who, quia semel tactu foemineo sorduerat, because he had once fallen into uncleanness, shut himself up in a voluntary prison for nine years together: and many we read of who out of the Spirit of penance liv'd lives of great austerity, using rudenesses to their bodies; by the pain of their bodies to expiate the sin of their Souls. Now whatsoever any man hath power to doe to himself; that the law hath power to command him; supposing a reason or a necessity in the law pro∣portionably great to the injunction, and to be of it self a sufficient cause of the suffering. It is true a man may doe it to himself to please his humor, or for vain-glory, or out of melancholy. I doe not say he does well in so doing; but that he hath power to doe it, without doing injury to any one: and if he does it to himself without cause, or without sufficient cause, he does no man wrong; he does no more then he hath power to doe, alwaies provided he keeps within the limits of the sixth Commandement. Now although the law pretends not to this power of doing it without reason, because all the power of the law is 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 in relation to others, in commutative and distributive justice, and publick and private charities; yet

the same authority which any man hath over himself in order to private ends, the law hath over him in order to the publick; because he is a part of the publick, and his own power over himself is in the publick, as every particular is in the universal. Nay the law hath a greater power then the man; for a man hath not power over his own life, which the law hath; so that whatever a man alone can doe, that the law can command him to doe: (except it be in such things which are wholly by God left in a mans power, and are subjected to no laws of man, and commanded by no law of God; as in the matter of single life, and other counsels Evangelical) the same things (I say) though not for the same reasons. If therefore the man can upon himself inflict an evil which he hath deserved, the law can com∣pel him, that is, she hath competent authority to doe it: and then he is bound in Conscience.

3. In matters favourable,* 1.16 and yet of great interest, we find that there are many events by the sentence of the law without the sentence of a Judge. Thus the right of Primogeniture is sufficient ordinarily to enter upon the inheritance without a solemn decree of Court; and if we consider the rea∣son of this, it will be of equal force in the present inquiry. For when mat∣ters are notorious, and the people willing, and it is every mans case, and there is a great necessity, and publick utility, it is sufficient when the rule is set; every man knowes his part, and his way, and Judges are not neces∣sary. But when men are to blame, and there are intrigues in causes, and men will snatch at what is none of their own, and they will not understand their duty, nor judge righteous judgements in things concerning themselves and their neighbours; it is necessary that there be Judges and Advocates and all the inferior Ministers of laws, that where the law is intricate, and men cannot judge and discern aright, or when they are interested and will not, the law may be interpreted, and their duty explained, and every man righted that otherwise would be wrong'd. The sentence of the Judge is but accidentally necessary: for the law saying that the eldest Son is heir to an intestate Father, the case is plain, and who is the eldest Son is no∣torious, and he is willing enough to enter upon the inheritance; and there∣fore besides the law in this case there needs no sentence of the Judge. Now the law is as plain in the condemnation of some crimes, and the assignation of some punishments. But because men are not willing to enter into punish∣ment, and they are not tied publickly to accuse themselves, therefore there are Judges to give sentence, and executioners appointed. And this is well enough in some cases: but because there are some cases in which it is necessary that the laws be obeyed in private as well as in publick, and yet without pe∣nalties a law is but a dead hand and a broken cord; the law annexes punish∣ments, but is forc'd to trust the sinning hand to be the smiter, because the private action cannot be publickly punish'd, because not brought before the Judge.

4. Besides this,* 1.17 there are some actions of so evil effect as to the pub∣lick, that for detestations sake they are to be condemn'd as soon as done, hated as soon as nam'd, strangled as soon as born; and when by such a sentence the act is represented so foul, the man stands more ready for re∣pentance, and himself is made the instrument. It is like a plain case in which any man may be allowed to be a Judge: for modesty's sake and for huma∣nity every man will condemn some sins; even though themselves be the

guilty persons. However the law takes the wisest course to give an univer∣sal sentence, that as the man is 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, so he may be 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, self-accus'd, and self-condemn'd; and not to expect the contingent discovery, and the long deferred solemnities of law. Some sins goe before unto judgment, saies the Apostle, and some follow after: that is, some are condemn'd ipso jure by the law, and the man does ipso facto incurre the penalty; others stay for the sentence of the Judge.

5. In the Court of Conscience every man is his own accuser,* 1.18 and his own executioner; and every penitent man is a Judge upon himself: God trusts man with the infliction of punishments and hard sentences upon him∣self for sin; onely if man fails, God will judge him to worse purposes; and so does the law. And as the impenitent people favour themselves to their own harm, for they sin against God even in their very forbearing to pu∣nish and to kill the sin: so doe the impenitent disobey the law by not being their own executioners of wrath: but in both cases the Conscience is oblig'd,

The thing therefore is just, and reasonable, and useful.

Now for the reducing of this to practice,* 1.19 and stating the cases of Conscience for the subject, as I have already done for the law-giver, I am to shew,

1. In what cases the Conscience of the subjects can be bound to inflict penalties upon themselves without the sentence of the Judge.

2. By what signs we shall know when the law does intend so to bind; that is, when the sentence is given by the law, so that the sinner is ipso facto liable to punishment, and must voluntarily undergoe it.

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,* 1.20 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,* 1.21 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;* 1.22 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;* 1.23 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,* 1.24 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,* 1.25 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,* 1.26 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,* 1.27 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,* 1.28 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.* 1.29 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,* 1.30 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,* 1.31 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;* 1.32 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,* 1.33 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,* 1.34 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.

Signs by which we may judge when the Criminal is condemn'd ipso facto.

The surest measures are these.* 1.35 Those laws contain sententiam latam,

and oblige the Criminal to a spontaneous susception of the punish∣ment, when 1. the law expresly affirms, that the guilty person does ipso facto incurre the sentence without further process, or sentence of the Judge.

2. When the law sayes,* 1.36 that the Transgressor shall be bound in con∣science to pay the fine, or suffer the punishment contain'd in the Sanction of the law: which thing because it is not usual in laws, lest I should seem to speak this to no purpose, I give an example out of the Spanish laws: for I finde in the laws of the Kingdome of Castile divers instances to this purpose;* 1.37 particularly, after the assignation of the Secretaries fee, ap∣pointing how much he may receive for the instruments of grace which he makes, it is added, Jurent quod observabunt eaquae in pracedenti capitulo ordinata sunt, & quod non accipient munera, & quod solvent poenas si in eas inciderint, ad quas ex nunc eos condemnamus, ità ut sint obligati in foro con∣scientiae ad solvendum eas, absque hoc quod sint ad illas condemnati. And the same also is a little after decreed concerning Judges and publick Notaries,* 1.38 that they take nothing beyond their allowed fees and salaries; and if they doe, they are to pay a certain fine. They are also to swear to observe that ordinance; and in case they doe not, that they will pay the fines to which the law does then sentence them, that they be bound in Con∣science to doe it without any further condemnation by the sentence of any man. Now the reason of this is, because the Conscience being intrusted and charg'd with the penalty, must suppose onely the duty and obligation of the man whose Conscience is charg'd. It were foolish to charge the Conscience, if the Conscience were not then intended to be bound to see to the execution: but that could not be, if the sentence of the Judge were to be expected; for that is a work of time, and will be done without troubling the Conscience. Therefore the Conscience being made the Sheriff or the Witness with the charge of execution, supposes the whole affair to be his own private duty.

3. In censures Ecclesiastical it hath sometimes been the usage of the Legislator to impose a penalty,* 1.39 adding, that donec satisfecerit, untill such or such a thing be done, the Criminal shall not be absolved: and this also is an indication that the sentence is made by the law, and is ipso facto incurred by the Delinquent, because it leaves a secret tie upon his Conscience ob∣liging him to doe it; which were needless, if the Criminal Judge were to be intrusted with it, for he is otherwise sufficiently intrusted with com∣pulsories to secure the executions. Of this nature is that Constitution of Innocentius 4. cap. Romana, §. procurationes, de censibus, lib. 6. describing the order for an Archbishop's visitation of his own, and the Dioceses of his Suffragan Bishops; forbidding severely him or any of his followers to receive a fee, bribe, reward, or present, qualitercunque offeratur, under what pretence soever it be offer'd, lest he be found to seek that which is his own, not that which is of Jesus Christ; adding, Quod si fuerit contrà prae∣sumptum, recipiens maledictionem incurrat, à qua nunquam nisi duplum re∣stituat liberetur, He that shall presume to doe otherwise, and receive any thing, shall incurre a curse, from which he shall never be absolved till he have resto∣red it two-fold. This relies upon the former reason.

4. Panormitan gives this rule,* 1.40 That when a sentence is set down in the law in words of the present or preter tense,* 1.41 it concludes the sentence to be ipso facto incurred; for whatsoever is ipso jure decreed, is ipso facto in∣curred: and of this decree, the present and past tenses (saies the Abbat) are sufficient indication. That is, if the words be damnatory; [as excommu∣nicamus, anathemate innodamus, we doe deprive him of all rights and offi∣ces, &c.] for if the Judge using the like words passes a sentence by virtue of those words, so does the law, there being the same reason, the same aurhority, the same purpose signified by the same form of words. But if the words be of the present or past time, and yet not immediately damnatory, they doe imply the sentence to be made afterwards; as decernimus, defi∣nivimus, declaramus, and the like. But if these words signify onely mini∣sterially, and not principally, that is, if they be joyned with other words in the present or past tense, then they declare the sentence past and ipso facto to be incurred; as declaramus eum privatum dominio bonorum; then the case is evident.

5. Of the same consideration it is when the sentence of the law is set down with the verb substantive Sum,* 1.42 of what tense soever, unless by a fu∣ture participle his nature be altered. Thus if a law saies, he that is absent from his parish, without just cause to be approved by his Bishop, above six moneths, est, or erit infamis, is or shall be infamous; the sentence is ipso jure lata, inferr'd by law, and ipso facto incurr'd; because the verb annexes the punishment to the fact without further process. But if the verb be annexed to a future participle the case is altered; the sentence is not to be undergone till the Judge have declared it. Now this relies upon the force of the words and the proper grammatical way of speaking, which is the best way of declaring the mind of a man, or the mind of the law; unless where it is confessed that the law-giver did not intend, or use to speak pro∣perly or by grammar,* 1.43 but by rude custome. This note I have in A. Gellius, Verbum esse & erit, quando per se ponuntur, habent atque retinent tempus suum; cum vero praeterito junguntur, vim temporis sui amittunt, & in prae∣teritum contendunt. If these words be not altered, they signify just by them∣selves; est or erit excommunicatus, or infamis, signifies the punishment to begin as soon as the fact is done: but est excommunicandus, that is a fu∣ture that relates to another time, and staies for the sentence of the Judge. But there must be something more to clear this. For if erit be the future tense, why shall it not as well signify sententiam ferendam, as est excommu∣nicandus; since the verb is to be left to his own time, as well as the present tense brought thither by a future participle? Therefore to this I adde, that when the verb or participle does signify the action or ministery of some other person besides the law and the Criminal, then it shews that the declaration of the Judge is to be expected; as in [est excommunicandus] that is, he is to be excommunicated, viz. by the sentence of his ordinary judge: but erit infamis, or erit excommunicatus, implies no mans action at all, but supposes the thing finish'd without any more to doe; and then comes in the rule of Nigidius in A. Gellius before spoken of. Infamis signifies pre∣sently, that is, he shall be so from the doing of the crime; and excommuni∣catus signifies present or past, and therefore by it the future tense shall be altered, and therefore the sentence presently incurred. But concerning this particular, who pleases to be Critical and curious in minutes may de∣light himself by seeing seventy five fallencies, and alterations of cases

by the variety of tenses expressed in words of law, in Tiraquel in his ex∣cellent and large commentaries in L. Si unquam, C. De revocandis donationi∣bus, in the interpretation of the word Revertatur. For my own part, I am content to assign such measures as are sure, plain, easy and intelligible. Nobis non licet esse tam disertis.

6. The sentence of the law does presently oblige the Conscience if it be expressed in adverbs of hasty or present time;* 1.44 such as are confestim, illico, extunc, extemplo, presently, forthwith, from thence forward, and the like: for those who appoint the punishment to be incurred without any in∣terval of time, in effect say that we are not to expect the dull and long pro∣tracted methods of Courts, and Judges, and commissions, and citations, and witnesses, and adjournments. Protinus, i. e. non expectato judiciorum ordine, say the Lawyers.

Protinus ad regem cursum detorquet Hiarbas.

Forthwith,* 1.45 that is, without the longer methods of the Court.

Nec mora, continuò matris praecepta facessit.

These words and their like have a present effect; and therefore doe signify a present obligation of Conscience. Concerning the signification of which and the like words it is hard to say whether we are to be guided by the Lawyers or by the Grammarians. The Lawyers are the best witnesses of sentences, and precedents, and the usages and customes of laws; and there∣fore can best tell how the laws are said to bind, and what sentences they are said to contain: and because by them we are to be judg'd in publick if questions doe arise, from them also we may take our rule in private. This seems reasonable: but on the other side, I find that Lawyers themselves say otherwise; and I have seen Tiraquel much blamed for quoting Bartholus, Baldus,* 1.46 and Salicetus for the signification of the word [Mox, by and by] which is of use in this present rule: because though they were great Lawyers, yet they were no good Grammarians; and therefore that in these cases, Era∣smus and Calepine, Valla and Linacre, Cicero and Terence, Priscian and Dona∣tus, were the most competent Judges. There is something on both sides which is to weigh down each other according as some other cosidera∣tion shall determine. But therefore as to the case of Conscience, I shall give a better and surer rule then either one or other, or both: and that is,

7. This being in matters of load and burden,* 1.47 by the consent of all men, the Conscience and the guilty person is to be favour'd as much as there can be cause for. Therefore whenever there is a dispute whether the sentence of the law must be incurr'd presently, or that the sentence of the Judge is to be expected; the presumption is alwaies to be for ease, and for liberty, and favourable senses. Burdens are not to be impos'd upon Con∣sciences without great evidence, and great necessity. If the Lawyers differ in their opinions concerning the sentence, whether it be already made, or is to be made by the Judge, let them first agree, and then let the Conscience doe as she sees reason. Thus if the word [Mox, by and by] be us'd in a sentence of law, because we find that in some very good Authors it signi∣fies with some interval of time,* 1.48 (as in Cicero, Discedo parumper à somniis, ad quae mox revertor;* 1.49 &, praeteriit villam meam Curio, jussitque mihi nun∣ciari se mox venturum;) therefore we may make use of it to our advantage, and suppose the Conscience of a delinquent at liberty from a spontaneous

execution of a sentence of law, if for that sentence he have no other sign, but that the word Mox is used in the law.* 1.50 In poenis benignior est interpre∣tatio facienda, In matters of punishment we are to take the easier part; and that is, to stay from being punish'd as long as we can: and in propor∣tion to this Panormitan gives this rule, When the words of the law signifiy the time past, or the time to come, we are to understand it in the more favoura∣ble sense; and that it includes the sentence of the Judge, before which the Criminal is not oblig'd. And to this very purpose the words of infinite and indefinite signification are to be expounded: and this answers many cases of Conscience, and brings peace in more; and the thing being reaso∣nable, peaceful, and consonant to the common opinion of the Lawyers, ought to pass for a just conclusion and determination of Conscience.

8. After all,* 1.51 as there is ease to the Criminal, so there must be care of the law; and therefore when a law imposes a punishment which would prove invalid, to no purpose and of no effect, unless it be of present force upon the committing of the fact, it is to be concluded, the law intends it for a sententia lata à jure, that it presently obliges the Conscience of the guilty person. The reason is, because it cannot be supposed that the law should doe a thing to no purpose, and therefore must intend so to oblige as that the sin be punished. If therefore to expect the sentence of the Judge would wholly evacuate the penalty, or make it insufficient to doe the pur∣pose and intention of the law; the sentence of the law must be suffered by the guilty person without the Judge. And this is true, however the words of law be used, whether in the past, present, or future time, whether simply or by reduplication, whether imperatively or infinitely: such are the penalties of infamy, irregularity, nullity of actions or contracts, especially if they be of such contracts which if they once prove valid, are so for ever, as in the contract of marriage. And therefore if a law be made that a man shall not marry her whom in her husbands life-time he had polluted; this must be suppos'd to be meant of nullifying the contract before it is consummate; that is, it is a sentence which the criminal must execute upon himself: for if he does not, but de facto marries the adulteress, and consummates the marriage, it will be too late to complain to the Judge; for he cannot annul the contract afterwards.

Notes

• * 1.1

  1.
• * 1.2

  2.
• * 1.3

  Exod. 21. 25, 26.
• * 1.4

  3.
• * 1.5

  Lib. 2. chap. 2. Rule 3. n. 8.
• * 1.6

  4.
• * 1.7

  Levit. 22. 14.
• * 1.8

  5.
• * 1.9

  Num. 5. 6.
• * 1.10

  〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉
• * 1.11

  6.
• * 1.12

  1 Cor. 11.
• * 1.13

  7.
• * 1.14

  8.
• * 1.15

  9.
• * 1.16

  10.
• * 1.17

  11.
• * 1.18

  12.
• * 1.19

  13.
• * 1.20

  14.
• * 1.21

  15.
• * 1.22

  16.
• * 1.23

  17.
• * 1.24

  De supersti∣tione.
• * 1.25

  Lib. 2. En∣nead. 1.
• * 1.26

  18.
• * 1.27

  19.
• * 1.28

  20.
• * 1.29

  21.
• * 1.30

  22.
• * 1.31

  23.
• * 1.32

  Lib. 1. Offic.
• * 1.33

  24.
• * 1.34

  25.
• * 1.35

  26.
• * 1.36

  26.
• * 1.37

  Lib. 2. ordinat. Regal. tit. 9. l. 1.
• * 1.38

  Ibid. tit. 15.
• * 1.39

  27.
• * 1.40

  28.
• * 1.41

  Cap. Caeterum, & cap. Nonnulli de rescriptis. cap. Novit. in fine de his quae fiunt à praelato.
• * 1.42

  29.
• * 1.43

  Lib. 17. cap. 7. Noct. Attic.
• * 1.44

  30.
• * 1.45

  Virgil. lib. 4. Aeneid. & lib. 4. Geor.
• * 1.46

  Alph. à Castro lib. 2. de leg. poen. cap. 7.
• * 1.47

  31.
• * 1.48

  Lib. 1. de Divi∣nat.
• * 1.49

  Epist. ad Attic.
• * 1.50

  Cap. in poenis de reg. ju••. lib. 6.
• * 1.51

  32.