VVhether it be lavvfull to release iust punishments which are inioyned by lavves.

* 23 Of this question there be many Ar∣guments on both parts. For first kings are stirred vp vnto clemencie, which woulde bée doone in vaine vnlesse they might forgiue. Al∣so Dauid forgaue seditious men, * and sware vnto Semei, that he woulde not punish him. And Paul commendeth Onesimus,* a fugitiue seruant, vnto his Maister Philemon & pray∣eth him to forgiue him his fault. And the vse was among Christian Emperours that in the wéeke before Easter, * when the memorie of Christ his death was celebrated, the pri∣sons were set at large. And amōg the Iewes the custome was, * that in Easter some one condemned man should be set at libertie by the chiefe Ruler. Also Augustine made inter∣cession oftentimes for the Donatistes and Circumcellions, which had not onely trou∣bled Religion, but also had doone iniurie to the life and goods of the Christians. Further we reade that it was decréed among them of olde time, that if a guiltie person had fled vn∣to Churches, he should be without harme. And hereof Chrysostome maketh mention in his Oration against Gainas.

24 Also there want not firme Arguments on the contrarie part. * For first, it séemeth that a godly worke shoulde not be hindred: and it is a godly worke to punish the guiltie, séeing it profiteth the Common weale, and taketh awaie sinnes. Moreouer by this meanes the office of Princes is hindered. For they beare the sword: which if they vse not when time and cause requireth, they doe not their duetie. Besides: he that releaseth punishments giueth of anothers and not of his own, sith iudgement is the right of God, as it is written in the first Chapter of Deu∣teronomie. And in the second of Paralip. the 19. * Chapter Iosaphat saieth: Exercise iudge∣ment, not onely for man but as it were for God. And the punishments of the lawe can not be taken awaie vnlesse it be by him that appointed them. But God appointed the pu∣nishments for sinnes. Wherefore no man shoulde diminish or take them awaie. But that God appointed the punishment of death for grieuous sinnes, it appeareth out of the 18. Chapter of Deuteronomie, where it is thus written, * that the people desired that God himselfe would not speake vnto them, because they might not abide so great a Ma∣iestie: and for that they chose rather to heare Moses to be the interpretour: that GOD heard these prayers of the people, and pro∣mised not onely that he woulde giue Moses vnto them, but also woulde prouide that no Prophet should at any time be wanting vn∣to them. A Prophet (saieth he) will I raise vp vnto you from among your owne brethren. But he addeth: If any man will not heare that Prophet, I will make inquisition against him. Howbeit this place prooueth not, that that punishment was the punishment of death. More certaine is the other place in the 17. Chapter of Deuteronomie: If (saieth God) there shall happen a difficult case,*yee shall goe vp to the high Priest or vnto a Le∣uite: and he that shall not heare the voyce of the Leuite or high Priest, or of the Iudge, shal die the death. But that was for changing the state of the Common weale. Samuels counsell was demaunded as concerning that matter, and he was not onely a Prophet but also a iudge; they gaue not eare vnto him therfore they were worthie of death. In déed, GOD might haue forgiuen them, but the Prince could not. Furthermore there is a waie opened vnto mischiefes, when men promise to themselues, that either through grace or rewarde they shall escape vnpuni∣shed. This also may bee prooued out of the histories. God commaunded that all the A∣malachites should be slaine, Saul spared A∣gag their King: * he was grieuously reproo∣ued by Samuel, because this was not lawfull for him to doe. * And when the king of Israel had spared Benhadad the king of Syria, whō God had commanded to be slaine: *Thy soule (saieth the Prophet) shall be for his soule. In déede the Prince hath power of life and of death. But yet, as he may not punish him that is innocent, so must he not let him e∣scape that is guiltie. Yea and the Lord saith: Thou shalt take awaie the murtherer from my Altar, and shalt put him to death.* Final∣ly, if this should be permitted vnto Princes, iudgements of death would be solde, and the execution of Iustice should be at pleasure of the Magistrate. Thus haue we Arguments on both parts. *

25 But here must we consider, that some lawes there be humane, and other some di∣uine. Page  161 And it belongeth much to the state of this question, whether sort they be. For hu∣mane lawes, because they procéed of a weake reason, are neuer perfect: neither can they comprehend all things, or foresée all chaun∣ces and circumstances. * Wherefore often∣times, if we shoulde seuerely and sharpely vrge the wordes of the lawe, many vniust things would be decréed. And so, there is of∣tentimes néede of moderation, * and interpre∣tation, and correction of the lawe. And mo∣deration is the bridle and rule of humane lawes, when wee consider not so much the wordes themselues, as the counsell & minde of the writer. Furthermore, Lawiers may interprete mens lawes if they séeme doubt∣full, eyther by other lawes, or by examples of former iudgements, or by the ordinance and custome of the Citie: or else according to iustice and saftie of the Common weale: but to correct or change, or to mitigate a lawe, is not any priuate mans part, but the office of the Prince alone, who made the Lawe. Wherefore Augustine in his Booke De vera Religione, A Iudge (saieth he) ought not to iudge of the lawe, but according to the lawe: otherwise all things would be bought. The same thing we haue in the Pandectes, De le∣gibus & Senatus Consultis. But nowe can we not say that the lawes of God are vnperfect so as they containe not all things. For the minde of God is infinite and most perfect. Doubtlesse it is the part of wise men and di∣uines diligently to weigh and examine the lawes of God and to expound some places by other places, * to consider the decrée and order which the Lord hath made, to discusse things that séeme to be repugnant, and to iudge of two lawes, * when both of them cannot bée kept, whether is to be preferred before the o∣ther. For example: The lawe is that the Sabaoth day must be kept holy: there is an∣other lawe that the Citie must be defended: it so falleth out sometime, that vnlesse wée fight on the Sabaoth day, the Citie cannot be defended. Here the better lawe must bée kept, namely, that the safetie of the Citie be defended. * For God saith: I will haue mercie, not Sacrifice. And Christ answereth: that it is lawfull to doe good on the Sabaoth daie.* The Lawe of God is, * that we must obey our Parents. Another lawe is, that we must o∣bey God: the Parentes commaund some∣thing, which is against the lawe of GOD: héere the better lawe must be kept: to wit, that we obey God. This is lawfull for vs in the lawe of God. But to abrogate or correct, or by moderation to diminish, and put awaie the lawe of God, is by no meanes lawfull for vs. Wherefore let Pigghius take héede what moderation it is by which he teacheth vs that we should vnderstand the first precept: Thou shalt loue the Lorde thy God with all thy heart, with all thy soule, &c.* For séeing this cannot be, he saieth, that the wordes of the lawe must be mitigated by a fit inter∣pretation. * Christ gaue and instituted his Supper, and commaunded that the same should be ministred in both kindes. But the Romane Antichrist saieth: that many chan∣ces may happen by reason of beardes, of dis∣eases, of shedding of the bloud: therefore the Cup must be plucked from the laitie. God in the holy assemblie would haue all things to bee ministered in the vulgar and knowne tongue. Neuerthelesse these men say, * that their mysteries must not be rashly propha∣ned: There is no necessitie that the people should vnderstand all things: These things must be committed onelie to the learned and wise. But who hath taught these men this moderation in the lawe of God? The Iewes vsed onelie the lawes of God, therefore the Princes might not mitigate them by inter∣pretations, but humane lawes they may, be∣cause they be inacted by them.

26 Furthermore some commandements forbid a thing to be doone, others commaund or (as the Schoolemen speake: * ) Some bée affirmatiue, others bee negatiue. Those lawes which forbid or denie any thing, doe euermore holde. As for example: wée are bound at all times that we shall not steale: that we shall not commit adulterie, &c. But those which commaund any thing, although that they also haue great strength, yet doe they not perpetuallie binde. If any shal giue vs a blowe vpon the right chéeke, * wee are commaunded to offer vnto him the left. Assu∣redly wee ought alwayes to haue a minde readie so to doe: howbeit we are not bounde at all times, and towardes all men thus to doe: For this Christ himselfe did not, but be∣ing striken, aunswered: If I haue spoken euil,*beare witnesse of the euill. And Paule: God (saieth he) shall strike thee thou painted wall. We must thus doe when eyther the glorie of God or the saluation of him that hath striken shall séeme to require it. God commaundeth that we shoulde come together to the holie congregation, to celebrate the Sacraments and to giue Almes. Yet doeth he not com∣maunde that we shoulde alwaies doe these things. But to what purpose is all this? * namely hereunto: God commaundeth if any man shall not obey the Iudge or the high Priest, that he be slaine. This lawe in verie déede bindeth the Magistrate, yet not al∣wayes, Page  262 but when it may be doone: * and some∣time it happeneth that it cannot be. Neuer∣thelesse if thou punish not when it may bée, thou offendest the lawe of God. Moreouer we must take héede, that the greater good be not hindred by the lesser. Ioab was an euill man and a murtherer, and worthie to bée slaine by Dauid. But when Dauid sawe that he was able to do much with the armie, * least any trouble and sedition shoulde arise, hée woulde not laie holde of him. And it may be that he spared Semei for the selfe same cause. * In like maner Saul, least any trouble or sedi∣tion should arise, or least that the election should be disturbed, woulde not at that time kill the rebels. For otherwise he might not haue forgiuen them those punishmentes which were appointed by God. Nay rather he coulde not by sacrifices haue purged a sinne which had bin doone with a stretched out hand and of set purpose.

* 27 Now let vs make answere to the Ar∣guments which are woont to bee obiected: whereas they say, that Princes are often stirred vp vnto clemencie, it behooueth to vn∣derstande what is the nature of clemencie. And this maie easily be vnderstood by the contrarie. Cruell is he which in punishing excéedeth measure, through a certaine cruel∣tie of the minde, and is not mooued at the miseries of men. * On the contrarie part he is mercifull which cannot abide to execute punishments but releaseth them, and that through a gentlenesse of the minde. And I adde: Through a gentlenesse of the minde: for if he be led by reward or fauour or neces∣sitie to release punishments, he is not merci∣full. This vertue (as saieth Seneca,) doeth chiefelie belong vnto Princes, and them which beare rule. For kings, are therefore called pitifull and mercifull, not because they be so, but for that they ought to be so. But priuate men which haue no publike power of punishing, maie forgiue manie things, yea and oftentimes also ought: howbeit they shoulde not bee called mercifull, but gen∣tle. And we ought to knowe, that clemencie doeth diminish punishments, not rashly nor by chaunce: not after a mans own pleasure, but by a right reason. And I call reason, not mans iudgement by it selfe, but that which is framed according to the word of God. For if punishments be released vnaduisedly or at a mans owne pleasure, nowe can it not be a vertue, for it doeth violate iustice. And ver∣tue is a certaine forme of right reason. Cle∣mencie doeth make the lawe somewhat to yéelde. But seueritie is by no meanes tur∣ned. And sometime the one is to be vsed and sometime the other. If there happen an out∣ragious cause, seueritie must bee vsed, not clemencie. Sometime the cause is made the lighter by circumstances: then there is place for clemencie. Doubtlesse clemencie, al∣though it bend the common lawe, yet doeth it nothing against right reason. Séeing it hath a consideration of the Circumstances, and according to that it appointeth punish∣ments. And when the mercifull man remit∣teth any part of the punishment, this •ée iudgeth that he whom he forgiueth, ought not to suffer any more. For he respecteth not the wordes, but the meaning and purpose of the lawe. Neuerthelesse when the punish∣ment due is altogether remitted, it is no cle∣mencie but pardon, and that is to be hoped for from God alone. Which the Iewes also vnderstoode when they said: *Who is this that forgiueth sinnes? Yet doe the Papists bragge, that they and theirs can giue a pardon of sinnes. But thou wilt say: If so the case stand: then might other princes vse clemen∣cie, but the Iewes might not, because they vsed the lawes of God. I answere, * that they also might be mercifull, yet not otherwise, than where no certaine punishment was prescribed by the lawe of God. In Leuiticus and in Deuteronomie it is commaunded, That weights should be iust, and measures right. He that had doone otherwise, was to be punished, yet no certaine punishment was appointed. Wherefore in that case there was place for the clemencie and seueritie of the Iudge. Another lawe there was, * that he which had deserued to be beaten with s•aues, should be punished with no more but fourtie stripes. In this case it was in the power of the iudge, that the partie should be punished with fewe or manie stripes within that number. * There was another lawe that the seruant which had solde himselfe into the po∣wer of another man, shoulde be grieuouslie punished. But if his Maister had oppressed him with violence, there was no punishment determined by the lawes. Herein also was place for the clemencie of the Iudge. Where∣fore not in vaine was clemencie often repea∣ted vnto the Princes of the Iewes. For it was lawfull to vse the same both in the hu∣mane lawes set foorth by them, as I haue said, and in the diuine lawes, so farre foorth as punishments were not prescribed by the lawes.

28 And as touching the clemencie of Augustus Caesar, I aunswere, * that that lawe which we haue, Ad legem Iuliam maiestatis, was humane. For by what punishment con∣spirators must be afflicted, it was decréed by Page  263 princes, and so that lawe might be miti∣gated by him. He iudged it would be suffi∣cient, if he had gréeuouslie rebuked Cinna: And assuredlie we reade in that historie, that he was greatlie vexed: and therefore he iud∣ged it better, to remit somewhat of the pu∣nishment. But how small a portion must be remitted, * iust moderation dooth declare. But humane lawes, when they followe the pre∣script of nature, must be accounted the lawes of God: As to put a murtherer to death. Herein must nothing be remitted by the Iudge. Doubtlesse, Clemencie is an habite wherewith by the gentlenesse of the minde we mitigate legal punishmentes within the limites of Iustice. *Dauid forgaue Semei: I graunt, but yet when he perceiued that it was not lawfull that he should goe vnpuni∣shed, he commaunded Salomon that he should not suffer his gray hayres to escape vnpuni∣shed vnto the graue: Neuerthelesse, it was not expedient for Dauid himselfe to kill him. For first Semei being of the familie of Saul, he might séeme to be mooued with hatred a∣gainst his posteritie. Further he had confir∣med his words of whom he had béene called before, a bloudie man. Lastlie it was not méete for him to disturbe that gladnesse and gratulation of the people. After this sort he forgaue Ioab,* who had killed two better men. For he sawe that he was able to doe much with the armie: Wherefore he also remitted him vnto Salomon. Howbeit it cannot be denyed, but that Dauid sinned, both when he absolued Amnon of Incest, and Ab∣solon of parricide. But what Dauid refused to doe, that did God himselfe afterward by himselfe. * For Amnon was slayne by Abso∣lon, and Absolon being hanged on a trée, was thrust through by Ioab with a speare. And whereas Paul commendeth Onesimus vnto his Maister Philemon,* that serueth not much to the purpose. For Philemon was a priuate man, and here was no prescribed lawe of God, onelie Paul prayeth him to for∣giue priuate iniurie, which is a common thing vnto all Christians. He prayeth (I say) Philemon to let passe his wrath. And that he dooth not against the lawe of God, but accor∣ding to the same. * For in Deuteronomium, there is a lawe, If an other mans seruant shal flye vnto thee, thou shalt not restore him to his Maister, which must be vnderstoode: so long as his Maister is in a rage and vnpati∣entlie disquieted. This was profitable to the Maister least he should ouermuch féede his wrath: and vnto the seruant, least he should be ouermuch punished,

* 29 But the fact of the Romans, in that at the feast of Easter they released vnto the Iewes some man that was bound and con∣demned, we cannot alowe. * For God neuer commaunded, that in their solemnities any guiltie man should be released. Howbeit, the Romans by this meanes curried fauour with the Iewes, to the intent they might the more easilie beare that seruitude. * The selfesame reason it was why Christian princes in the holy wéeke [of Easter] would open the pri∣sons, and let foorth guiltie men: insomuch, that they were not verie skilful in the lawes of God. For if they had bin bound for debt, they had forgiuen not their owne but other mens. Againe, if for hainous offences, this had bin to open a windowe vnto mischiefe. But princes cannot easilie hold the meane. And in like case, as they will haue the Mini∣sters of the word either to be poore wretches, or else after a sort to be princes and Gods, so doe they either punish the guiltie together with the innocent (as Theodosius did) or else they so spare all men, that nothing is ad∣ministred seuerelie. And as touching Augu∣stine, in déede I graunt that he intreated for the Donatistes: yet he denyed it not to be lawful for Magistrates to punish Hereticks. But when the Circumcellions or idle per∣sons became cruel against the Christians, and that the Church was constrained to call for the helpe of princes, and that now these idle persons were punished, the Church sée∣med to be cruell and to prosecute her owne iniuries. Howbeit Augustine desireth not that they should be wholy forgiuen, but onelie that their bloud might not be shed. Yet howsoeuer it were, * y^e example of Augu∣stine ought not to preiudice anie mans opini∣on, sith we liue by lawes, not by examples. At this day if a man had killed a Minister, or doone a robbery, who would intreate for him? But there was a refuge vnto the churches for such as were guiltie. Admit it were so, and we also doe not take away sanctuaries, for God permitted them. For if the cause be obscure, they may better be there than in pri∣son while the same be knowen. Neuerthelesse the cause being manifest, God himselfe com∣maunded, that the wicked man should be taken from the verie altar and be slayne. These be the thinges which mooue me to thinke, that it is not lawfull for a prince to forgiue the punishment of offenders. And as∣suredlie the wise men haue alwayes held that commonweale to be well ordered: where verie few thinges are left to the power of the Iudges. But fewe such thinges had the Commonwealth of the Israelites. Yet had it some. That which was defined by the Page  264 lawes, * was in no wise to be remitted. Let not thine eye (saith God) spare thine owne wife that sleepeth in thy bosome.