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 VI. It is not lawfull for private Christians without publick authority to punish Malefactors, but they may require it of the Magistrate in some cases.

IN the law of Nature it was permitted:* 1.1 but as the world grew older, and better experienc'd, and better instructed, it became unlawfull and forbidden; in some places sooner, in some places later. The Ephori among the Lacedaemonians might kill Criminals extrajudicially; and Nico∣laus of Damascus relates, that amongst the Umbrians every man was the re∣venger of his own injuries: for till by laws men were defended, they by revenges and retaliation might drive away the injury as far as was neces∣sary. But because when a man is in pain and grief he strikes unjustly and unequally, and judges incompetently, laws were made to restrain the first licence, and to put it into the hands of Princes onely, because they being common Fathers to their people, were most likely to doe justice equally and wisely. Iccirco enim judiciorum vigor jurisque publici tutela videtur in medio constituta, ne quisquam sibiipsi permittere valeat ultionem, said Hono∣rius and Theodosius, That no man might avenge himself, Laws and Judges and Tribunals were appointed for publick justice.

But for this,* 1.2 provisions at first could not be made so generally, but that some cases would happen, and some gaps be left open, which every man must stop, and provide for as well as he could. Thus we find that Phinehas, when he saw God was angry with the Sons of Israel about the matter of Moab, himself, to divert the anger that was already gone forth, smote Zimri, a Prince among the Simeonites, and his fair Mistris in his arms, and kill'd them in their Crimes. From his example many Zelots amongst the Jew took liberty to kill a man that sinn'd apparently. So Mattathias kill'd a Jew that offer'd sacrifice according to the manner of the Greeks; and the People kill'd three hundred of their Countrymen upon the like account. But this quickly grew into excess and irregularity; and there∣fore when our Blessed Lord was zealous for the honour of the Temple, he went no further but to use a little Whip to affright them from their prophaneness.

And yet in some cases God permitted private persons to be Execu∣tioners;* 1.3 as in case a Jew tempted his Child,* 1.4 or Brother, or Neighbour to Idolatry, the tempted person might kill him without delating him to the Judge: and in a cause of Blood, the next of kin might kill the Man-slayer if he overtook him before he took Sanctuary. But here the cases were such that the private person was not Judge, but by leave from God was Executioner upon the notoreity of the fact: for although for a dead per∣son his nearest relation might with his own hand take vengeance; yet if himself was wounded, he might not, but by the sentence of the Judge, say

the Doctors of the Jews; because he ought not to be Judge where he could hardly be moderate.

In the Sea,* 1.5 and in desart places, where there can be no appeals to Judges, every man is Executioner of the sentence of the law of Nations. Thus we find that Julius Caesar pursued the Pirats in the Mediter∣ranean and Adriatick Seas; and because the Proconsul would not, he gather'd a sudden Navy and overtook them, and hang'd them upon the main-yards of their own Vessels. Thus the wild Arabs and Circassian Thieves, that live in vast places, and under no Government, being publick Enemies of Mankind, and under no laws, nor treaties or communications of peace, may be kill'd by every one that is injur'd and spoil'd by them, when he can doe it. To this agrees that of Tertullian, In publicos hostes omnis homo miles est; and that of Democritus, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, He that kils a thief and a robber with his own hand, or by command, or by consent, is innocent,

〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.

But this is to be understood of the permission in the law of Nature.

For in Christianity men are not easily permitted to touch blood;* 1.6 not hastily to intermeddle in the causes of blood; not to give sentence for the effusion of it: these things are to be done with caution, and a slow motion, and after a loud call, and upon a great necessity, because there are two great impediments: the one is the duty of Mercy, which is greatly re∣quir'd and severely exacted of every Disciple of Christ; and the other is, that there is a Soul at stake when blood is to be shed, and then they are told, that as they judge they shall be judged, as they measure it shall be measured to them again. And therefore Criminal Judges have a tender imployment, and very unsafe, unless they have the guards of a just Au∣thority, and a great mercy, and an unavoidable necessity, and publick uti∣lity, and the fear of God alwayes before their eyes, and a great wisedome to conduct their greatest dangers.

That which remains and is permitted in Christianity is,* 1.7 1. The pu∣nishment of reprehension, of which every wise and good man may be judge and minister: for as S. Cyprian said that every Bishop is a Bishop of the Catholick Church, that is, whereever he chance to be, he must not suffer a Soul to perish if he can help it, but hath right every where to minister to the necessities of Souls, who are otherwise destitute, and every where to pray in private, to bless, to absolve dying persons, to supply the defects of a widow and desolate Church; so every good man hath power to punish a base and vicious person by severe and wise animadversions of reproof. For a wise man is never a private man (said Cicero;) and Nasica, and Cato, and Fabius, and Lollius were in authority like perpetual Consuls, alwayes in power over a vicious man.

2. It is not against the laws of Christianity,* 1.8 that Parents, and Tutors, and Masters, and Governors should punish Criminals, that is, such as are subject to them, and by such punishments as are permitted by law, and by such measures as are agreeable to the just and charitable ends* 1.9 of their re∣spective

governments, and by the analogy and proportions of Christian mercy and clemency: in the execution of which punishments there need no other laws be given but what are dictated by the mind of a charitable, dispassionate and a good man. But then in these Governments there is more liberty then in any other but the supreme: for a personal injury done to a Father or a Tutor may be punish'd by the Father or Tutor respectively, and so also it may by the Supreme power, Cum dignitas authoritasque ejus in quem est peccatum tuenda est, ne praetermissa animadversio contemptum ejus pariat, & honorem levet, said Taurus the Philosopher in A. Gellius. An injury done to a Superiour is a contempt of his authority as well as injuri∣ous to his person; and if it be not punish'd, will soon disorder the superio∣rity. But then this must be wholly for emendation; and though anger may be the instrument, yet charity must be both the measure and the end.

3. When the law hath pass'd a sentence,* 1.10 and given leave to any sub∣ject to be executioner, he that is injur'd may doe it. But this is to be un∣derstood in one case onely that concerns the Subject, and one that concerns the Prince. 1. For if the Prince commands that whoever finds such a person shall smite him to death if he can, every man is bound to it, if the law be just: as in the case of Treason, or deserting their military sta∣tion, it hath sometimes been decreed. In reos Majestatis, against Traitors every man is a Souldier, sayes Tertullian, who affirms it also concerning all publick Enemies. 2. The other case, which relates to the advantage of the Subject, is, when the execution of the publick sentence is necessary to be done speedily for the prevention of future mischiefs. Thus Justinian gave leave to every man to kill the Souldiers that came to plunder; for in that case there was no staying for solemnities of law, and the proceedings and method of Courts;* 1.11 Melius enim est occurrere in tempore quam post exitū vindicare. Vestram igitur vobis permittimus ultionem, & quod serum est pu∣nire judicio, subjugamus edicto, ut nullus parcat militi, cui obviare telo opor∣teat ut latroni. This which the law cals a revenge is but a meer defence, it is a taking the mischief before it be intolerable; and therefore this will be the more out of question: for certainly if some punishments are law∣full, all necessary defences are much more; this onely excepted, that the degree of this is excessive and uncharitable, and therefore ought not to be done, but in those cases where the evil likely to be suffer'd by the inno¦cent is intolerable, as if the plunder be the undoing of a man and his family, and will cause them to perish, or to be extremely miserable; and therefor•• Ulpian said well, Furem nocturnum si quis occiderit, ità demum impunè fe∣ret, si parcere ei sine periculo suo non poterit, Though the law permits a man to kill a Night-thief, yet he may not doe it if he can secure himsel•• without it: but when to spare the Thief will be his own undoing, the•• he may. For it is true which was said of old,

Res omnes conditae famulantur vitae humanae;

And again,

Nobilissimum est quod orbis habet humana vita.

Nothing is fit to be put in ballance to the life of man; and therefore when a man's life and a man's goods are compar'd abstractly, these are extremely out-weighed by that: and therefore for little and tolerable losses it were well if the laws would appoint lesser punishments then Death. But when it is consider'd, that a great loss makes a man and all his family live a mi∣serable life, and men willingly venture their lives to save such great por∣tions,

the laws that put such thieves to death are very justifiable. And it is observable that when God in Moses law appointed a mulct of money upon thieves, it was supposed to be in such robberies where the thief was able to restore four-fold. Adde to this, that if our laws did provide that stollen goods should be restored, they would less need to give leave to the true man to kill the thief. But now that he is the more likely to be undone, because no restitution is to be made him, he may in the case of such great spoilings be better allowed to be the executioner of the sentence of the law to prevent his ruine, and to defend his right. But it were much better if he would not at all use this liberty.

4. But when the evil is past if the law permits the execution of her sentence to the injur'd person;* 1.12 it is to be supposed that there is onely an indulgence to the grief of him that is wrong'd, and therefore if he kills the injurious man, he is indemnified in law, but not quitted in Con∣science. Thus when the Civil law of old, L. Gracchus C. ad legem Juliam, de Adulteriis, and at this day the Spanish laws permit the wronged Hus∣band to kill the adulterer, it is lawful; that is, it is not against justice, and therefore the law cannot punish it: but because it is extremely against charity, his Confessor ought not to absolve him without repentance and amends; for the Gospel does not approve it. The reason is, because if the injury be done, the execution is meerly revenge, without the mixture of any good thing to legitimate it. Now if the law does it by her ministers, it is 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, an example, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 (as De∣mosthenes his expression is) that others may be afraid, & not be tempted by impunity. But if the man does it by his private hand, there is in it less of observation and exemplarity; or if there were not, yet there were less intended; and therefore the private executing hand is not so innocent: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉,* 1.13 saith the Apostle, we must not avenge our selves: this can hardly be reconcil'd with such executions. There is onely this allay in it, that if the wronged husband can no other way prevent his dishonour and his wives sin or continuance in it, if the law permits it to him, it may be suppos'd to be done for prevention, not for revenge; and if it be so, as it is suppos'd, it hath many degrees of excuse, and some of lawful, but nothing commendable; for nothing can reconcile it to charity, because (as I observed before) there is a soul in the way which ought strangely much to be regarded. Nay there are two Souls: for it was rarely said by Py∣thagoras, as Iamblichus relates, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, it is better to suffer the injury then to kill the man: For after death there shall be a judgment; he that did the wrong shall be punish'd, and he that spar'd him shall be rewarded.

5. But if the Criminal be of so desperate an impiety that he seems incorrigible,* 1.14 and of a long time hath seem'd so (for that is the best way to prove him so) then it is lawful for a private hand to be executioner of the publick sentence; but he that is injur'd ought not to doe it. Not that it is murder, or directly unlawful in the precise action: but that it can hardly be quitted from revenge; and it will be hard for any man to be so good as not to have just cause to suspect himself, if he be so bad, upon the meer permissions of law to thrust his hand into his brothers heart. Other persons may doe it out of zeal or love of their countries good. The Civil law gave leave exercendae publicae ultionis adversus latrones, desertoresque

militiae, of executing the anger of the law against fugitive souldiers, and com∣mon robbers: he that had not been robbed by them might better doe it then he that had: for it being permitted pro quiete communi, for the publick peace, he is a good patriot that honestly and justly ministers to that end alone; but he that hath suffer'd by them, had need be an Angel, if he does not spoil that good end by the mixture of revenge; and if he be an Angel he will find a better imployment then to kill a man where it is not commanded, and where it is not necessary.

6. Some affirm that Princes are never to be reckoned to be private persons,* 1.15 when they proceed according to the sentence and meaning of the law, though they doe proceed brevi manu, as the style of the law is; and doe not proceed by the methods and solemnities of law by reason of disabi∣lity to doe it. Thus if a man grow too hard for the laws, the Prince must send Souldiers to him, not Serjeants, if the case be notorious and it be a publick sentence: and the Lord Mayor of London did strike Wat Tyler, though he was not convicted in law, nor sentenc'd by the Judges. Upon this account the King of France offered to defend the killing of the duke of Guise: concerning which I cannot give accounts, because there might be in it many secrets which I know not. But if there wanted nothing but solem∣nities of law, and there wanted power to suppress him by open force, and that it was just and necessary that he should die, and by law he was guilty of it, if there was any thing wanting which should have been done, he that died was the cause of it, and therefore to him it was to be imputed. But supposing what these men affirm to be true; (concerning which I shall affirm nothing) yet this is very rarely to be practis'd, because it is sel∣dome lawful, if ever it be, and not without the concurrence of very many particulars, and is very easily abused to extreme evil purposes; as in that intolerable and inhumane massacre of Paris, which all generations of the world shall speak of with horror and the greatest detestation. But concerning the thing it self that which the lawyers say is this, Generale edictum accedente facti evidentiâ habet vim latae sententiae, when a law is clear, and the fact is evident, the sentence is already past: and therefore some of them are apt to say, To doe the same thing in a chamber is not murder, if it be justice when it is done upon a scaffold; for the same demerit in the criminal and the same power in the Supreme is an equal cause and warranty of the execution. And since it is cheaper to imploy a Physitian then an army, and there is less prejudice done to the publick by such a course, since the State of Venice kills upon suspicion, and there are some things known which cannot be proved, and cannot be suffer'd, and since we see that solemnities of law, like thin aprons, discover more shame sometimes then they hide, and give more scandal then they remove; these men are more confident then I am: for they dare warrant this course which I dare not. But he that will adventure upon this, must take care that it be done 1. by a competent authority, 2. upon a just cause, 3. for a great necessity, 4. according to the intent and meaning of the law; 5. it must be in summo & mero Imperio, by one that is absolute and supreme; 6. it must be upon notoreity of fact, 7. when there is no scruple of law, 8. and if after all this there be no scruple in conscience, 9. nor yet any other means of secu∣ring the publick, 10. and the thing have in it as great charity to the pub∣lick, as there is in it justice to the particular, 11. and that the warre be not justum bellum, that is, between supreme powers, 12. nor yet any treaty,

or promise, faith or covenant to the contrary between the supreme and the inferior offending; 13. nor yet there be a scandal of greater mischief then can be procured by the unsolemn proceeding; 14. nor is done refragante judicio procerum, & sententiis juris prudentum, against the earnest advice of prudent and grave persons, which if it happen will arrest the resolution, and give check and consideration to the Conscience: then it is supposed by many that there may be reason enough to forbear what cannot be us'd, that is, the solemnities of law, which are the methods of peace, not to be expected in a state or time of warre. And by this time it will be so hard to doe it justly, that it will be better to let it alone. For after all these cautions and proviso's, it is not permitted to assasinate or privately to murder the Criminal, but to proceed by open force or by avowed man∣ners of justice, though they be not solemn, and the common waies of peace; that is, they must be owned in publick, and asserted by law, either ante∣cedently or ex post-facto. An example of the first way is frequently seen in in France; where the fugitives of law are proceeded against in their ab∣sence, and executed in effigie; and in the states of Italy against the Banniti: and of the second way examples have been seen in the Manifesto's of some Princes when they have been put to such extrajudicial and private waies of animadversion. But these things happen not but in such places where Princes are more absolute, and less Christian, or that the Subject trans∣gresses by power.

7. Upon the like account it hath in some ages of Christianity it self,* 1.16 but in many ages of Gentilisme, been permitted that by single duel men prove their innocence, and oppress the supposed Criminal:

—puróque pióque duello Quaerendas res censeo—

said one of the Roman Senators to Ancus Martius. Now concerning this I shall not need to say much; because now long since all Christian Princes and States, & all Churches and Ecclesiastical persons have condemned it as a grievous crime, upon these two accounts: 1. Because it is a tempting God by waies which he hath never allowed, it is a lottery that he never gave warrant to: and upon this account it was that Pope Nicolas the first forbad the Em∣peror Lotharius to try his wives suspected chastity by the combat of two champions,* 1.17 cùm hoc & hujusmodi sectantes, Deum solummodo tentare vi∣deantur; and to the same purpose Pope Celestine and some others did forbid it 2. Because the innocent person is expos'd to equal danger with the Cri∣minal, and hath been oftentimes oppress'd; as it happened in the case of William Ca••ur an armourer in Fleetstreet, who being by his servant John David falsely accused of treason, was yet slain in Smithfield by his perjur'd adversary: and then the people have accepted the event as a divine testi∣mony, which in this case being to a lie and to the false part, must needs be infinitely dishonourable to God. But if it were not for these and some other evil appendages, and if the innocent person were sure to prevail, and the law made the private hand the minister of Justice, who onely can tell the secret, and therefore is the surest Judge, there is no peradventure it might as well be done by that hand as by any other. But this cannot be reduc'd to practice at all; but in the whole conjunction of affairs is highly criminal and intole∣rable. In Spain we find that a duel was permitted between two eminent persons [los infantes de lara, the Spaniards call them] onely upon the ac∣cusation of an injury done to some Ladies, the daughters of Rodrigo de

Bibar; and the victory was gain'd by him that was innocent: and another by the men of Zamora in the case of the death of King Sanctus; and quick∣ly they found advocates and defenders. And Vasquius affirms it may as well be permitted by law, as that an injur'd Husband should kill the adulterer. But besides the reasons formerly alledged against such private executions of an uncertain sentence; because they have no foundation in justice or charity, neither in publick or private good, they are deservedly banished from all Christian Countries.

But this is to be understood onely of Judiciall Duels,* 1.18 whether Crimi∣nal or Civil; for as for Duell extrajudiciall and private, it is so Unjust, so Uncharitable, and so Unreasonable, so much against all Laws of God and Man, so infinitely against the piety of him that survives it, so infinitely against the hopes of him that dies in it, that nothing can excuse it: but even Duels which are permitted by laws, ought not to be so, and are not permitted by religion; excepting onely when the Duel is a compendium of war, and is designed to doe justice, and to prevent the greater issues of blood.

Thus the Romans and Albans determin'd their wars by the fight of three Champions of each side;* 1.19 and the Curiatii being subdued by Hora∣tius Cocles, the City Alba came into subjection to Rome. David and Go∣liah fought for their respective Countries; but the Duel did not deter∣mine it directly, but onely discourag'd the conquer'd party. Upon the same account Clodoveus the first Christian King of France offer'd to fight with Alaricus Prince of the West Goths; nobilissimo pari fortunam utrius∣que gentis decretum in,* 1.20 said Paulus Aemilius: and Guicciardine tells that when the French and Italian armies were ready to joyn battel, the fortune of the day was committed to thirteen Champions on either part.* 1.21 Cambden reports that when the Saxons and Danes grew weary of the so great effu∣sion of blood caused by their daily wars, misso in compendium bello, utrius∣que gentis fata Edmundo Anglorum & Canuto Danorum Regibus commissa fuerunt, qui singulari certamine de summa Imperii in hac insula depugna∣runt. Edmund and Canutus fought in a little Island by Gloucester, and drew the war into a compendium, and sav'd the lives of their Subjects by hazar∣ding their own. William Duke of Normandy offer'd this to Harold before the battail in Sussex: And King John of England to Lewis of France, by deputed Champions. And Richard the second of England challenged Charles the sixth of France concerning the title of the French Crown. And Pope Martin allowed the Duel between Charles of Anjou and Peter of Ar∣ragon to determine the question concerning the Kingdome of Sicily. These indeed are great Examples, and are then onely just when the wa•• is just, and on that side onely on which it is just.* 1.22 Haec est necessitas quae bellum justificat (saith Baldus) cum ad bellum extremo loco confugitur, When the war is necessary and the case is extreme, the necessity makes it just, when the contrary evil is intolerable: and when things are come to this pass, then it is true what Bodinus saies, Non interest quo numero adversus hostes decernatur, It matters not by how few the war be ended. Such a Duel is a just war,* 1.23 as all war antiently was called a Duel,

Graecia Barbariae lento collisa duello,

All Greece and Barbary fought a duell; it is duarum partium congressus, the contention of two armies as well as two single persons: and that the words

are synonyma we find in Varroa 1.24, Festusb 1.25, Plautusc 1.26, and P. Merulad 1.27; but concerning the thing it self, who please to see more instances and prece∣dents, more arguments and verifications of it, may at his leisure find many particulars in Frisiuse 1.28, Ayalaf 1.29, Bocerusg 1.30, Alciath 1.31, Bodinusi 1.32, Beutherk 1.33, and Albericus Gentilisl 1.34.

I have now described the prohibitions of private executions, together with the cases in which they have been or may be permitted. The next Question is upon the latter part of the Rule.

Whether it be lawfull for a Christian to require of the Magistrate that his offending Brother may be punished.

If the injur'd person be design'd onely to punishment 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉,* 1.35 and 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, out of anger and a desire to be re∣veng'd, there is no question but it is infinitely Unlawfull. Render not evil for evil, and divers other prohibitive words of our Blessed Lord, cannot mean lesse then the forbidding of revenge, though obtain'd and desir'd from the hand of justice; for although the Magistrate is bound to doe it, if re∣quir'd, yet he that requires for vengeance sake is of an Unchristian spirit: and this was observed by Dion in Plutarch, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, To receive & re∣quire amends from the law is more just then that injury against which ju∣stice is required; but it proceeds from the same weak principle; and there∣fore it is fit for none but fools and weak persons:

—quippe minuti Semper & infirmi est animi exiguíque voluptas* 1.36 Ultio: continuò sic collige, quod vindictâ Nemo magis gaudet quam femina—

or rather it becomes not such persons; for nothing can become them but to leave their folly and to grow wiser; for it is caecus & irrationalis furor, as Lactantius calls it, inhumanum verbum est, saith Seneca, it is unreaso∣nable, and inhumane, and brutish: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, said the Jews of Alexan∣dria, We are not delighted in taking revenge against our Enemies, because by the laws of God we are taught to have compassion on men. And therefore is this much more to be observed in Christianity, where we are all members one of another, united to Christ our head; and therefore we should com∣port our selves as members of the same body: concerning which Cassiodore saies prettily,* 1.37 Quod si manus una casu aliquo fortè laedat alteram, illa quae laesa est non repercutit, nec se erigit in vindictam, If one hand strikes the other, it is not stricken again, neither doth the other think to be reveng'd; as knowing it was too much that one was smitten.

2. It is lawfull for a Christian to require of the Magistrate to punish him that is injurious,* 1.38 if he justly fears a future and intolerable evil; for then it is but a calling to the law for a just defence, without which the Magistrate should bear the sword in vain. Clemens Alexandrinus defines 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 or punishment (meaning that which is just, and in some cases reasonable to be requir'd) to be 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉,

a return of evil (not for the vexing of the injurious, but) for the re∣lief or commodity of the complainer. But if it be that which Aristotle defin'd it, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, f••r the satisfaction of him that pu∣nishes, that is, that he may have the pleasure of revenge, then it is intole∣rable. And therefore it must be alwaies provided that this appeal respect the future onely, and not that which is past; for that is revenge, and this is caution and defence.

3. In all repetitions of our rights which are permitted to Christians be∣fore Christian Judges,* 1.39 it is not lawfull for Christians to take any thing for amends beyond the reall losse or diminution of good: for that is a re∣tribution of evil, which at no hand is permitted to a Christian. The Jews might receive four-fold, Christians must be content with simple restitution of their loss and reall dammages.

4. Christians must not go to law but upon very great cause;* 1.40 and there∣fore some of the Heathens, Musonius, Maximus Tyrius, and others, would not allow 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, any amends at law for reproachfull or disgracefull words. And the Christians, who neither were nor ought to be behind them, desir'd not their Calumniators to be punished. So Justin Martyr, We will not those to be punished who doe calumniate us. Their own perverse∣ness and ignorance of good things is enough already of calamity. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, A Christian is commanded by Christ our new Law-giver not to be revenged, no not a little. Abstinere à litibus etiam plusquam licet, said Cicero, We must abstain from suits of law, even far beyond our convenience: and in the Primitive Church they took all honest things for Commandements, and therefore did not think it lawfull at all to go to law; 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, saith Justin Martyr of them,* 1.41 They doe not go to law with them that rob them. But that it is lawful, the publick necessities are a sufficient argument; and yet men for want of charity make more necessities then needs: for if charity be preserv'd according to its worthiest measures, there would be no suits of law, but what are not to be avoided; that is, there would be none for revenge, but some for remedy and relief. And this was that which* 1.42 Mu∣sonius said, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, It is not ingenuous to be running to law upon every provocation though by reall injury: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, said Pythago∣ras, A wise man will neither revile his neighbour, nor sue him that does. For Good men (said Metellus Numidicus) will sooner take an injury then return one: and if we read the Sermon of Maximus Tyrius 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉;* 1.43 whether it may be permitted to a good man to return evil to the injurious? it will soon put us either to shame, or at least to consider whether there be no command in our religion, of suffering inju∣ries, of patience, of longanimity, of forgiveness, of doing good for evil; and whether there be not rewards great enough to make amends for all our losses, and to reward all our charity; and whether the things of this world cannot possibly be despised by a Christian; and whether peace and for∣givenesse doe not make us more like to God and to the Holy Jesus. Cer∣tainly if a Christian be reproach'd, rail'd at, spoil'd, beaten, mutilated, or in danger of death, if he bears it patiently and charitably, he may better say it then Achilles did in Homer,

—〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉,

I hope for this charity to be rewarded by God himself. If a man have relations, and necessities, and obligations by other collateral duties, he must in some cases, and in many more he may defend his goods by the protection of laws, and his life and limbs; but in no case may he go to law to vex his Neigh∣bour: and because all law-suits are vexatious, he may not go to law, un∣less to drive away an injury that is intolerable, and that is much greater then that which is brought upon the other.

5. When a Christian does appeal to Christian Judges for caution,* 1.44 or for repetition of his right, he must doe it without arts of vexation, but with the least trouble he can; being unwilling his Neighbour should suffer any evil for what he hath done. Omnia priùs tentanda quam bello experiun∣dum. He must trie all waies before he go to this; and when he is in this, he must doe it with as little collateral trouble to his adversary at law as he can. To this belongs that of Ulpian, Non improbat praetor factum ejus qui tanti habuit re carere, ne propter eam saepiùs litigaret. Haec enim verecunda cogitatio ejus qui lites exsecratur non est vituperanda. A man must be mo∣dest and charitable in his necessary suits at law; not too ready, not too greedy, not passionate, not revengeful: seeking to repair himself when he must needs, but not delighting in the breaches made upon his Neighbour.

In order to this,* 1.45 it would prevent many evils, and determine many Cases of Conscience, or make them easie and few, if evil and rapacious Advo∣cates that make a trade, not to minister to justice, but to heap up riches for themselves, were not permitted in Common-wealths to plead in behalf of vitious persons and manifest oppressors, and in causes notoriously un∣just. Galeatius Sforza Duke of Millain being told of a witty Lawyer that was of evil imployment, a patron of any thing for money, imploying his wit to very evil purposes, sent for him, and told him that he owed his Painter a hundred Crowns, and was not willing to pay him; and therefore asked him if he would defend his cause in case the Painter should require his money at law. The Advocate promised him largely, and would war∣rant his cause; which when the Duke heard from his own mouth, he cau∣sed him to be hang'd. The action was severe, but strangely exemplary. I have nothing to doe with it, because I am not writing Politics, but Cases and Rules of Conscience: but I have mention'd it as a great reproof of all that which makes Causes & Suits of Law to be numerous; which is a great sign of corruption of manners, if not of laws, in any place; but amongst Christians it is a very great state of evil. And therefore Charles the ninth of France made an edict that whosoever began a suit at law should pay into the Finances two Crowns; which if his cause were just he should lose, if it were unjust the law would sufficiently punish him besides: but even upon a just cause to go to law, is not the commendation of Christian justice, much lesse of charity, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Then charity is best preser∣ved amongst Citizens, not when there are most decisions, of causes, but when the suits are fewest.

Notes

• * 1.1

  1.
• * 1.2

  2.
• * 1.3

  3.
• * 1.4

  Deut. 13. 9.
• * 1.5

  4.
• * 1.6

  5.
• * 1.7

  6.
• * 1.8

  7.
• * 1.9

  Jubet Deus ut manus no∣stras super mi∣nores semper habeamus, hoc est, ut peccantes eos assiduis verberibus corrigamus, n•• amore inuili & indulgentia nimi•• e••u∣••entur ad malum, & ad vitia nutriantur, Lactant. lib. 6. instit.
• * 1.10

  8.
• * 1.11

  C••d. rubr. quando liceat se sine judice vindicare.
• * 1.12

  9.
• * 1.13

  Rom. 12. 19.
• * 1.14

  10.
• * 1.15

  11.
• * 1.16

  12.
• * 1.17

  Caus. 2. qu. 5. c. 22. mono∣machiam. Decret. tit. de vulgari purgat. 6 Stows Annals. 25. of Henry
• * 1.18

  13.
• * 1.19

  14.
• * 1.20

  Lib. 5. hist. Ital.
• * 1.21

  in Dobunis.
• * 1.22

  Bald. 5. conf••••. 493.
• * 1.23

  Horat. epist. l. 1. ep. 2.
• a 1.24

  De lingua Latina.
• b 1.25

  in verb. Du∣ellum.
• c 1.26

  Amphitruo.
• d 1.27

  in lib. 1. Annal. Enn.
• e 1.28

  de Rep. lib. 1. cap. 26.
• f 1.29

  lib. 1. c. 3.
• g 1.30

  lib. 2. c. 8.
• h 1.31

  de Singul. certam. c. 3.
• i 1.32

  de Rep. c. 4. l. 7.
• k 1.33

  conclus. 76.
• l 1.34

  de Jure belli, lib. 1. c. 3.
• * 1.35

  15.
• * 1.36

  Juvenal.
• * 1.37

  De amicitia.
• * 1.38

  16.
• * 1.39

  17.
• * 1.40

  18.
• * 1.41

  Vide Great Exemplar, part. 2. p. 363.
• * 1.42

  apud Ly∣siam.
• * 1.43

  Serm. 2.
• * 1.44

  19.
• * 1.45

  20.