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IT is true, there is a commandment against it, Thou shalt not steal: but there is no penaltie inflicted upon those that do. But by the Judicial Law, Exod. 22. vers. 1. If a man
steal an Ox or a Sheep, and kill it, or sell it, he shall restore five Oxen for the Ox, and four Sheep for the Sheep: and vers. 4. If the theft be found with him alive (whether it be Ox or Ass, or Sheep) he shall restore the double. So that by that Law, there ought to be a restitution, but no life was then in danger. But to this it will be said, that that Law was given to the Jews onely to observe, and doth not extend to us. To this I say, that had it been an equal and just Law to suffer death in such case, without doubt it had been imposed upon them to observe; for in the Chapter before, Murder is made Death; life for life, that is equal pu∣nishment: but life for any wordly or temporal substance whatsoever, holds not the least equalitie of pro∣portion; for one mans life is of great∣er value and esteem, than all the
treasure upon the earth.
Man is the image of God, and therefore certainly we ought to deal tenderly with his image. And if God who hath the sole absolute power and dominion over all his creatures, thought not fit to give the Magistrate, who is his Vicegerent here upon earth, such power over the lives of men, but hath reserved it to himself (except in case of mur∣der) how dare then any power or au∣thoritie what soever usurp it?
The Civil Law (if we may believe Fortescue) is more agreeable to the Word of God, for he saith, cap. 49. that the Civil Laws do judge open Theft to be satisfied by the recom∣pence of four fold, and private Theft by the recompence of double: so not to suffer death by their Law.
I do not write this to incourage men in this heinous crime (which is
too too common in these times) no, far be it from me so to do; for I know if there be not a severe Law against it, there will be no injoying any thing that a man hath; the Law of propertie will be of little force; But that there may be some other way of punishment, as by Banish∣ment, slavery, or the like, which may be as effectual to terrifie men, & keep them from it; so that we do not take away the life of man, over which there is no jurisdiction given in such case by God; we having no precept, rule, or warrant for it.
And now to me, the forfeiture and penaltie in such case, is no less unreasonable, is it not too much to lose the life? and yet will not that satisfie; but thereby also his bloud be corrupted; and all his estate for∣feited; so that his issue is not inheri∣table to him; nor to any other ance∣stor;
nor can this corruption of bloud (it is so high) be restored otherwise, than by Act of Parliament. And if he were Noble or Gentle before, he and all his children and posteritie, are by this made base and ignoble, in respect of any Nobilitie or Gentrie which they had by their birth.
For my part, I think there cannot be a more rigid and tyrannical Law in the world, that the children should thus extreamly suffer for the crime and wickedness of the Fa∣ther; the innocent for the nocent.
It is true, that as the Apostle saith Rom. 5. that by one man sin entered into the World, and death by sin; but he goes further, and so death went over all men, in whom all men have sinned. We all sinned in Adam, therefore no wonder if death fall up∣on all.
God hath the supream Soveraign power over all his creatures, and so may inflict what punishment he plea∣seth upon them for their sins, & who dares question it, or say it is unjust? and yet God deals not thus severely with man; for in the 18. of Ezek. he reproveth the Israelites for using this Proverb.
The Fathers have eaten sowr grapes, and the childrens teeth are set on edge;and saith, they shall use it no more: for that Soul that sinneth, it shall die;and after verse the 20. The same Soul that sinneth, shall die; the Son shall not bear the iniquity of the Father, &c. Thus you may see the great mercie of God, whose greatest severity were but Justice.
Doth not this extreamly condemn the injustice of that Law▪ which so severely punisheth the Children for the transgression of the Father, a
wicked Father may have a good Child, and shall such a one be ruined through the wickedness of the Fa∣ther: his Estate wholly lost, and not onely disinherited through his cor∣ruption of bloud, as to his Fathers Estate, but also made incapable of taking any thing by descent from any other Ancestor? a more rigorous Law certainly was never made.
But I know it will be said, that the reason of the severity of this Law, is the more to deterre and affrighten men from this sin, which is so fre∣quent amongst us; ut metus ad ••m∣nes, paena ad paucos, &c.
To this I answer, that it is not Lawfull nor warrantable, for men to make unjust and tyrannical Laws to keep men from sinning; and to put them in execution: punish the offending Father, but not the inno∣cent Children.
The custom of Gavel-kind is more reasonable, for though the Father be hanged, the Son shall inherit; for the Custom is, the Father to the bough, the Son to the plough. I shall con∣clude it with this, that I hope one day to see this Custom become the Common-Law of England: the next thing I have in consideration, is, touching the debts of Infants under the age of 21 years; and therein I propose this question.