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EXOD 23 1. Thou shalt not receiue a report; put not thine hand with the wicked to be an unrighteous witnesse.
SVndry doe hold, that a Iudge must not judge con∣trary* 1.1 to that which he knoweth, whatsoever is alledged or proved to the contrary; for whatsoever
is not of faith is sinne, Rom. 14. 23. that is, if a man doe a thing against his conscience, it is sinne; Wherefore, if a Iudge know a man to be innocent, and yet evidences be brought in against him that he is guiltie; then they hold that the Iudge should use all meanes to free the inno∣cent man; as first, he should deale with the accuser not to proceed in his accusation, and should signifie unto him, that he knoweth well the innocency of the partie. Secondly, if this cannot helpe, then he is bound pub∣lickly to testifie upon the Bench, the innocency of the partie, and he may deferre the giving out of sentence, unlesse he be charged by a superiour; but if the matter haue no successe that way, then he may remit him to a superiour Iudge, or will the partie accused to appeale to a superiour Iudge; but if he cannot prevaile any of these wayes, some doe will him rather to quite his place, than to giue out such a sentence against the inno∣cent.
Although the light of nature it selfe, and the word of God both teach us, that the life of the innocent is to be maintained; yet when another law of greater force commeth in, then this must giue place; for reason it* 1.2 selfe teacheth us, that a Iudge is to proceed according to things proved, otherwise justice could not be pre∣served, and the good of the whole, is to be preferred before the good of a private man.
But it may be said, this is both against the law of na∣ture, [Object.] and against the law written, to kill an innocent man.
To kill an innocent man accidentally, and besides his [Answ.] intention, when he is exercised in his lawfull calling,* 1.3 this is not a sinne to him; but if he should of purpose kill an innocent man, that incked were a sinne contrary to the law; and even as in just warre, when the victory cannot be had otherwise unlesse there be innocent men
killed, as well as the guiltie, yet they may be safely kil∣led, because the warre is just warre, and secondly, be∣cause it is not their intention directly to kill the inno∣cent, but because otherwise the victory could not be obtained: So a Iudge is bound to proceed according to that which is proved, and if he kill the innocent man, it is beside his intention; for his intention is here to doe justice, and not to kill the innocent, and he is bound to preferre the universall good, before the particular.
But if he doe so, shall he not be guiltie, as Pilate was [Object.] in condemning Christ?
Pilate was an unjust Iudge, because he pronounced [Answ.] false sentence against Christ who was innocent, and this* 1.4 might haue beene knowne Iuridicè, because they were not 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, their testimonies agreed not, as the Evan∣gelist Marke saith, Chap. 14. 59.
If a woman were proved to be the wife of Titius, [Object.] whom Titius in his conscience knoweth not to be his wife; although the Iudge should command Titius to doe the dutie of an husband to her, yet Titius should rather suffer any punishment, than to performe that dutie to her, because he knoweth her not to be his wife. So &c. [Answ.]
Here we must distinguish betwixt that which is in∣trinsecè malum, evill in the owne nature of it, and that which is but accidentally evill; to commit whoredome is simply evill, but when the Iudge condemneth the in∣nocent man whom he knoweth to be innocent, he doth not giue out sentence against the man, because he is in∣nocent, (for that were simply sinne) but because he is bound to execute judgement; and here the Iudge pro∣ceedeth as a publick person; but Titius is a private per∣son onely, and therefore he is bound to doe according to his knowledge.
If a Iudge should heare two men disputing, and one [Object.] of them should hold a tenent which were hereticall,
and he should conclude for him that is hereticall, yet I am not bound to follow his sentence.
A Iudge when he condemneth a man according to [Answ.] the law, he maketh not a lie, as when he saith, such a* 1.5 proposition is true, when it is false; and in matters ••••∣vine, he is not a Iudge as he is in the civill Court.
But if a Iudge should be urged in his conscience, posed, is this an innocent man or not? [Object.] if he should an∣swere and say, he is nor, then he should answere contra∣ry to his knowledge.
As a Iudge, he must answere that he is not innocent; [Answ.] here he must judge according to things proved, and the* 1.6 sentence of a Iudge is the sentence of publick authori∣tie, and when he judgeth so, he doth not against his con∣science; and here we must distinguish betwixt his spe∣culatiue* 1.7 and practick knowledge; although he be inno∣cent according to private and speculatiue knowledge, yet he is guiltie according to the course of the Law and publick authoritie.
He that is innocent should not be condemned; this [Object.] man is innocent; therefore he should not be condem∣ned.
This man is innocent in judicio speculativo, [Answ.] but not injudicio practico;* 1.8 but turne it this way, he that is guil∣tie injudicio practico should die, but this man is guiltie in judicio practico; therefore he should die.
If a man should produce an Instrument privately to a Iudge, a Iudge could not proceed upon this, because he saw such a thing, if it were not publickly produced in Iudgement; this knowledge which he hath by the sight of this Instrument privately, he had it not as a Iudge, but as a private man. So &c.
Whether is the Executioner bound to execute the [Quest.] man, whom he knoweth to be unjustly condemned?
He is not the Interpreter of the Law; for that is the [Answ.]
part of the Iudge, but he is onely to execute the sen∣tence* 1.9 pronounced by the Iudge: but if he should know the sentence to be false which is given out upon the in∣nocent man, then he should absolutely refuse and say, It is better to obey God than man, Act. 4. 19. He is bound to obey his superiour in a good cause, and in a doubt∣full cause; but not in that which he knoweth altogether to be false.
But what if a Iudge doubt in his conscience, in such a [Quest.] case what is he to doe?
Here he is not to giue out sentence, for that which is [Answ.] not of faith is sinne, Rom. 14. 23. That is, whatsoever he doth against his conscience.
The conclusion of this is, seeing the sentence of [Conclusion.] judgement dependeth upon the witnesses, there is great fidelitie required in them, that the Iudge may proceed orderly in judgement, and that he make not a false sen∣tence proceed as it were out of the mouth of God.
The opinion of some concerning the procee∣ding of a Iudge secundū allegata & probata.
Why a Iudge must pro∣ceed according to things proved.
How a Iudge sinneth in giving out sentence a∣gainst an innocent per∣son.
How Pilate sinned in giving sentence against Christ.
A Jud••e when he gi∣••th out sentence upon 〈…〉〈…〉 person, he 〈◊〉〈◊〉 not al••••.
The sentence of the Iudge is the sentence of publick authoritie.
Scientia speculativa. Scientia practica.
A man innocent inspe¦culatiue judgement and yet guiltie in practicall judgement.
Whether the Executio∣ner be bound to exe∣cute one that is con∣demned being inno∣cent.