Lifes Preservative Against Self-Killing, Tract · Chapter 2 · Section 6 – Section 9
§. 6. About malefactors arraigned for crimes; how they are to anſwer to the queſtion Guilty or not guilty.
Queſtion 2.A ſecond queſtion conſiderable about the foreſaid ſubject is touching malefactors, indited and arraigned at the barre of Iuſtice, before a lawfull magiſtrate, to be tryed upon their lives for ſome capitall crimes that they have done; as petty treaſon, burglary, murder, or the like, touching their lives; whether, when they hold up their hands at the barre, and are in legall manner asked the queſtion whether they be guilty, or not guilty of ſuch a fact whereof they are indited; and which indeed they themſelves know they have done: whether (I ſay) are they bound in conſcience, and may they anſwer affirmatively that they are guilty: without any danger of being indirectly guilty of ſelf-murder?
Anſwer. They that confeſſe themſelves to be guilty are indirect ſelf-murderers.For reſolution of this queſtion I anſwer, that when a man is accuſed of ſuch a capitall crime, and is therefore brought to a legall triall, whereunto he is ſubjected for finding, or not finding him to be guilty of that fact, upon the verdict of which enquiry, Law and Authority is ſatisfied, and determines their proceeding with the party; for him, upon that queſtion, whether he be guilty, or not guilty; before the triall, to confeſſe himſelfe to be guilty; ſo, by his owne onelyonly witneſſe and verdict caſting himſelfe upon the loſſe of his life, hee may in a ſtrict conſtruction, and in ſome ſort be accompted culpable of indirect ſelf-murder.
Exception.Except it be in caſe to ſave innocents, from ſuffering wrongfully, for his fault, or that it be for greater good of the State, of the Church, or of his owne Soule; when the fact can no otherwiſe be knowne, or proved againſt him, but by his owne confeſſion.
Touching a voluntary and full confeſſion after conviction and condemnation I know none that is not of opinion, that it is neceſſary for the ſalvation of the malefactors ſoule, although his body do periſh as Achan did, Ioſhua 7.20.
That ſuch an affirmative anſwer of guilty, to that queſtion, makes the anſwerer, I ſay in ſome ſort, indirectly guilty of ſelf-murder (although they are not the worſt men, morally conſidered, that doe ſo;) I will make it plaine.
Reaſons. 1.Firſt, a malefactor, by ſuch an affirmative anſwer, anticipates, and deprives himſelfe of that legall triall, whereby it were poſſible for him to have eſcaped, and not to have beene found guilty of that capitall fact, for which he is indited; and therefore, by dying upon his owne onelyonly confeſſion, witneſſe and verdict; which hee needed not to have done, he is guilty of indirect ſelf-murder.
Now, for a man that hath, in danger of life, lawfull choiſe of two waies; the one moſt certainely mortall, the other more doubtfully deadly; if hee chooſe, and periſh by the former, he is indirectly a ſelf murderer; becauſe, he willingly rejected the latter and ſafer, whereby he might have lived: thus it is in this caſe of anſwering guilty, before the triall.
2.Secondly, it is a naturall axiome, that no man is bound to betray himſelf: Nemo tenetur prodere ſeipſum; quiſ que tenetur defendere ſeipſum. Ʋnuſquiſ que praeſupponitur eſſe bonus, donec probetur eſſe malus.and that every one is tied to defend himſelfe. A Traytour (ſaies D. Kellet Miſcel. li. 1. p. 164.) may without ſin plead not guilty; that is, not proved guilty at your barre; where, every one is preſuppoſed to be good, untill he is proved to be bad. I am not guilty ſo farre, that I am bound to accuſe my ſelfe: and this is (ſaies hee) the allowed generall acceptation of that uſance.
For further manifeſtation hereof, it is to be conſidered, that the queſtion and anſwer is made in a humane civill Court, wherein hee is demanded, not whether in Conſcience, but whether in Law he be guilty; whereby he is bound to confeſſe no more againſt his life, than can be legally proved againſt him; ſpecially ſeeing he anſwers not upon oath, or adjuration; which binds the examinate, or priſoner at the barre, in conſcience, upon obligation of religion, to depoſe the truth concerning himſelfe, knowne onelyonly to that deponent; and according to whoſe owne teſtimony hee is to be acquited. or condemned;Of anſwering upon oath about crimes concerning a mans ſelfe. but, this being moſt unreaſonable, to make a man witneſſe, Jurie, and Judge in his owne cauſe; about and for things ſecret, to bring him to publick judicature and cenſure, it is not in uſe among us.
The ſeeming contrary practiſe in this Kingdome, is (as I take it) onelyonly in Courts of Conſcience, having more ſpirituall power; to bee uſed ſpecially for the good of mens ſoules, without blood-ſhedding, or danger of their lives; who are not required upon oath to depoſe of criminall matters concerning themſelves; but where there are firſt promoters and accuſers offering to prove the ſame: in which caſe, for the better informing and reſolving of the Court, from the conſcience of the accuſed; in favour of whom, it is originally allowed, from the ſupreme governour and Judge of that Judicature, that hee may anſwer his knowledge upon his oath to the articles of his accuſation; not with legall intention, by that courſe, to make him unnaturally to accuſe or condemne himſelfe, where none others can, or are about to doe the ſame; but for anſwere in his owne defence touching the things that he is accuſed of; thereby, either to make his innocency to appeare, if he be blameleſſe; or otherwiſe, by his owne confeſſion of his faults, for the good of the Church, and his ſoules health to diſcover the danger, and ſhew his ingenuity that hee may repent, amend, and find favour.
Objection 1.It may be objected, that ſuch a malefactor is bound, in this caſe, to anſwere, according to his owne conſcience and knowledge, that he is guilty: becauſe, if he anſwer not guilty, when he is indeed guilty, he lies: which is unlawfull for him to doe.
Anſwer 1.To this I reply; firſt, that the malefactors anſwer is to be made according to the intention of the Law, and of the Iudge that moves the queſtion: Cont. Ma…c. ō. lib. 4. Juſta & digna praeſcriptio eſt in omni quaeſtione, ad propoſitum interrogationis pertinere debere ſenſum reſpenſionis. aliud conſulenti, aliud re ſpondere, dementis eſt. Senſus reſpōſionis non eſt ad aliud dirigendus qu im ad propoſaum interrogationis.according as Tertullian ſaith: it is a juſt and worthy rule, that in every queſtion the anſwer ſhould bee applied to the ſame ſenſe and purpoſe, to which the interrogation is made.
To anſwer of one thing, when he is asked another, is the part of a mad man.
Agaeine, the ſenſe of the anſwer is not to be directed to any other thing, than that which was propounded in the interrogation.
Now, the Iudge propounding, according to Law, this queſtion to the priſoner at the barre, art thou guilty, or not guilty of this felony, or the like; intends not that he ſhould anſwer, from his onelyonly conſcience, guilty; which is unnaturall and ſuſpitious, for him to give witneſſe and virdict againſt himſelfe, to the taking away of his owne life; but that he ſhould anſwer not guilty, in law, at the barre whereof hee ſtands arraigned, that ſo, for finding of him guilty of that whereof hee is indited, hee may legally bee put upon the triall of God and the Countrey.
For the queſtion being propounded in a disjunctive propoſition, art thou guilty, or art thou not guilty? both gives a free choiſe which of them to anſwer, and alſo puts in minde, and poynts rather to the latter, as more naturall and equall, than to inſiſt upon the former.
It is a free and lawfull election offered, in mercy and favour to the priſoner, from the King by the Iudge, for the indicted perſon to chooſe which he will; whether voluntarily to confeſſe the fact, or rather to put himſelfe upon the triall of God and the Countrey for the ſame.
His negative anſwer of not guilty, is but his choiſe and imbracing of the latter triall; which is moſt agreeable to nature, to the Law, and the Kings favour and mercy, in this caſe; which he can no otherwiſe have, but by firſt pleading to the indictment, not guilty; And ſo, his anſwer and plea of not guilty is no lye, although hee have done the fact, whereof he pleads he is not guilty, and for triall thereof puts himſelfe upon God and the Country.
Objection 2.If it be againe objected that ſeeing the Law that makes this disjunctive queſtion, accepts of the priſoners affirmative anſwer; and thereupon condemnes and executes him; (as David did with the Amalckite, upon his confeſſion that he had ſlaine Saul, 2 Sam. 1.16.) it ſeemes to be lawfull and requiſite for all malefactors to anſwer to the queſtion affirmatively; touching the things that in conſcience they are guilty of.
Anſwer.I anſwer, it is lawfull and fit for Magiſtrates to uſe many meanes to winde out the truth of facts from delinquents, which malefactors are not bound, upon ſuch queſtions or inquiſition, to reveale againſt their owne lives: in regard, that every one ſeverally is to order their practiſe and courſe, according to the rules proper and pertinent to their owne conditions and callings.
The Law indeed accepts of the malefactors anſwer of, Guilty; and accordingly proceeds to condemne and execute him; becauſe, by his confeſſion, giving teſtimony and verdict againſt himſelfe, he cuts of, prevents and excludes himſelfe from triall by others, whereby he might be either cleared, or condemned; in regard, that it is juſtly ſuppoſed that none other can know a man and his actions ſo well as himſelfe doth: and therefore, the Law for eaſe, certainty, & other politick reſpects, doth permit and accept of ſuch an affirmative anſwer, but neither commands, nor commends it: becauſe, the Law takes notice of things, and cenſures them politically, and not theologically conſidered.
Objection 3.Thirdly, it may perhaps be here replied, that when a man (beſides his owne knowledge of his capitall fact) hath, upon examination before a Iuſtice, confeſſed the fact under his hand, which is produced againſt him at the Triall, how can he plead negatively to the inditement, Not guilty, without lying either in the former, or in the latter; ſeeing of cōtradictiōs of neceſſity one muſt be falſe?
Anſwer.I anſwer, that for ſuch an one to anſwer at the Barre, Not guilty, is not a lie, nor properly a contradiction to his former confeſſion; or to his owne knowledge; neither is that negative plea any concealement of the truth, from being then and there knowne, by ſuch lawfull meanes, as by Law, and the Iudge, is intended for diſcovery of the ſame, which is by other evidence than a mans owne confeſſion.
For clearing of the truth whereof, it is to be obſerved that the queſtion made to him touching his fact, is propounded to him, and hee charged with the fact, in his Inditement, in ſuch a nature and forme of Law termes, as it may be he properly underſtands not; as whether he be guilty of that treaſon, felony, burglary, or the like? in which reſpect, or Law notion, put upon his fact, his life is queſtioned, and in danger to bee taken away. And therefore when the queſtion requires an anſwer touching his fact, as it is veſted in that forme, or Law terme and notion, he lies not, nor contradicts himſelfe in anſwering negatively, Not guilty.
For, although hee knowes, and hath elſewhere confeſſed himſelfe to bee guilty of the fact, materially conſidered in the ſubſtance of it; yet he may be ignorant (as moſt men are) whether that fact of his, formally conſidered, is, or may be found to be treaſon, felony, burglary, or the like, as by the inditement it is charged upon him; and in which reſpect he is to ſuffer death for it, if he do anſwer affirmatively. And although he ſhould certainly know that his fact were ſuch, in conſtruction and termes of Law, as, by his Inditement, the ſame is charged upon him; yet is he not to anſwer affirmatively: becauſe, not he, but the preſent impannelled Iury, are the competent and lawfull Iudges to find, or not to find it to be ſuch, in that forme, and Law quality.
And therefore, hee is bound in conſcience to anſwer negatively, Not guilty of ſuch a fact under that forme, or terme and Law notion; whereby, and wherefore his life, in that reſpect, may be taken away.
And ſo, by pleading not guilty, hee lies not, nor contradicts himſelfe; but thereby takes the allowed benefit of putting it to a legall triall, whether his fact ſhall bee found againſt him in that ſenſe and forme, as, in thoſe Law termes, he is charged with the ſame in his inditement; and in which reſpect onelyonly he can be put to death for it; which courſe if hee ſhould not uſe of anſwering Not guilty; but that he ſhould ſtand mute, or anſwer affirmatively Guilty, he ſhould be indirectly a ſelf-murderer: as hath beene ſhewed.
Repli.But then, it may be further replied, when ſuch a malefactor ſhall (after his pleading to the Inditement, not guilty,) bee publickly examined by the Iudge about his fact, conſidered in the ſubſtance of it, without the veſture of ſuch termes, or Law notions put upon it; how can he anſwer negatively, againſt his conſcience, and former confeſſion before a Juſtice.
Anſwer.I anſwer, firſt, the Iudges queſtions to ſuch an one, at publick triall, (after his negative plea to the bill of Inditement,) are miniſtred in favour of the party arraigned; both that he may, upon better adviſement, traverſe his former confeſſion, by his negative anſwer, contrary to the which confeſſion hee is allowed at the barre to plead not guilty. And alſo, that hee may not bee caſt, or condemned, upon any evidence, or verdit of others againſt him; before he bee heard anſwer for himſelfe, what hee can ſay for the negative in his owne defence, againſt the affirmative evidence, or ſentence produced againſt him: where it is to be conſidered that, the primary intention and expectation of the Iudge in his queſtions at triall is, that, by the priſoners anſwers, hee may the better decerne the truth, or falſhood of the evidence of others againſt him, and how himſelfe may proceed in accepting of the verdit, and in giving judgement according to juſtice, and not thereby to wring affirmative anſwers from the arraigned, againſt their owne lives; when others cannot touch them; which is contrary to the Law of nature, and of God.
Secondly, it is alwaies to be obſerved by every malefactor that in his anſwers hee doe not, to ſave his life make any lie, neither directly, nor yet by equivocation, or mentall reſervation: and alſo, that he doe not ſo confeſſe the truth againſt his owne life, that he ſhould thereby make himſelfe guilty of indirect ſelf-murder.
Both which evils hee may avoid by the medium or middle courſe, either of traverſe, and demurrer delaying and putting off the Iudge and Iury from himſelfe, to informe themſelves by other evidences than his owne: or elſe by ſilence (after his generall negative plea of not guilty,) replying nothing to ſuch queſtions, as the anſwers thereof may intangle him, either in a lie, or in indirect ſelf-murder, after which manner of anſwering nothing, our bleſſed Saviour behaved himſelf before Pilate, Iohn 19.9.
Although that ſuch ſilence, or not anſwering directly may be conſtrued to be an acknowledgement of the fact, that he is indited for; yet thereby he ſhall not be active, but onelyonly paſſive in being found guilty, and ſo condemned to die; whereby he ſhall be free of indirect ſelf-murder, in that reſpect.
The confeſſion of a malefactor, upon examination before a Iuſtice, when the ſame is againſt his owne life, may bee conſtrued to have beene either raſhly and unwarrantably done by the Examinate; againſt which therefore he is allowed at his Triall to plead not guilty: or elſe that hee did the ſame upon ſome motives and reaſons of conſcience, for the good and ſalvation of his ſoule: which are things properly belonging to another Court.
And therefore, in humane Courts of Aſſize, the queſtions and anſwers (in this caſe) reach not ſo farre as to rack, or diſcover the conſcience of a man, to the taking away of his owne life, by his owne confeſſion, which the Law of nature and of God binds a man to preſerve.
Although a capitall malefactor is bound in conſcience not to lie in his anſwers, yet he is not bound to reveale all the truth he knowes againſt himſelfe; ſpecially where hee is not tied by ſome ſpeciall divine bond ſo to doe.
A negative anſwer at triall is as ſtrong to ſave a man, as his former affirmative in confeſſion before a Iuſtice can be to condemne him; except either he publickly at his triall acknowledge the ſame; or that there be ſome other proofe, or evidence againſt him.
And therefore I conclude, that it is not neceſſary in conſcience that whatſoever truth ſuch a man (in this caſe) hath once confeſſed, that he ſhould every where, and at all times, upon interrogatories to be anſwered at will, confeſſe the ſame with perill of his life; but that hee may be ſilent, or forbeare to anſwer otherwiſe than he is bound by the lawes of the Court where he anſwers.
For, if another be bound to keepe cloſe a mans confeſſion made to him of his ſecret faults, that man is not compellable to diſcloſe the ſame of himſelfe, ſpecially againſt his owne life; when he cannot doe the ſame without being guilty of indirect ſelf-murder; as in this caſe I have ſhewed by the rules of divinity and right reaſon, for reſolving of weak conſciences in this point; not intermedling to argue and determine the ſame by the rules of the Common-law of this Kingdome, which is impertinent to my profeſſion, and beyond my underſtanding; and therefore I leave that worke to the learned of that moſt Honourable profeſſion; to whoſe cognizance this ſubject (legally conſidered) doth appertaine.
§. 7. Of indirect ſelf-murder by commiſsion.
The ſecond degree of indirect ſelf-murder is by commiſſion, in divers branches.The ſecond meanes of indirect ſelf-murder is by a courſe of commiſſion, or of doing things, unlawfully tending to bring a man to his death; which is a degree groſſer than the former, and conſiſts in divers branches.
1.Abuſe of lawfull things.Firſt, by abuſing lawfull things, in tranſgreſſing due moderation in their uſe; for time, meaſure, and manner; falling into extreames, either of defect, or of exceſſe, or of unſeaſonableneſſe: which is done two wayes. 1.As meate, drinke, &c.Firſt, in things both reſpecting the body, and in the acts about them: as in eating to gluttony, and drinking to drunkenneſſe; uſing labour and recreations to ſurfeiting: and alſo in things reſpecting the minde; as in the overſtraining, and ſurcharging of the thoughts, fancy, and underſtanding; 2.Diſtemperature of the minde.in the immoderate diſtemperature of the affections, and paſſions of the minde, ſuffocating or waſting the ſpirits by exceſſe of choller, griefe, fretfulneſſe, and the like; which being let looſe, and extended beyond the bankes of their due moderation, doe often prove mortall, and meanes of indirect ſelf-murder, when they are willingly and indulgently entertained, and given way to: It is a hard thing for a man to uſe meanes, and not to abuſe them; which cauſes many a mans table to become a ſnare to him, and a trap aPſal. 69.22., and ſhortens his time upon earth.
2. Self-mutilationSecondly, indirectly, a man may be guilty of ſelf-murder, by needleſſe mutilating of himſelfe, and cutting off any of his members, (as Origen did) to the hurt and danger of his life; which, by the preſervation of ſuch a member, might have beene in more ſafety; for, lifes perfection is in the perfection of the whole body. Notwithſtanding, for the ſafety of the whole, a man may lawfully and neceſſarily cut off a member; which cannot be preſerved without manifeſt danger of thereby loſing his life; but, neither to puniſh a ſin paſt, nor to prevent a ſin to come, may a man deſtroy or cut off any of his members, whereby he may be leſſe able to doe the offices and duties for which God hath given him the ſame; ſeeing that both for chaſtiſement, and prevention of ſin, God hath appointed other morall meanes, which wee are to uſe, and therein to depend upon God for the ſucceſſe; for not in mans forced diſability to act ſin, but in the renovation of the heart conſiſts true ſanctification: Note.that of pulling out the right eye, and of cutting off the right hand, Mat. 5.29, 30. is meant of morall mortification, whereby thoſe members are made uſeleſſe, and as if they were not, to any unlawfull uſe.
§. 8. Of Indirect ſelf-murder of commiſsion by unwarrantable practiſe of Phyſick, &c.
3. Unwarrantable practiſe of Phyſick.Thirdly, a man may be guilty of indirect ſelf-murder, by practiſing of Phyſick, or Chirurgery unskilfully, immoderately, or dangerouſly upon himſelfe; either above his ſtrength, or knowledge; killing himſelfe by his unwarrantable endeavours to cure himſelfe: or elſe, by leaving thoſe that they know to be skilfull, carefull, and have lawfull calling to practiſe; to put themſelves into their hands, whom they neither know to have skill, nor calling to undertake ſuch cures; or, are ſuch as be deſperate attempters, with ſmall regard of mens lives in their practiſe: if a man know the ſame, and doth wilfully chooſe and commit himſelfe, ſpecially in difficult caſes, into the hands of ſuch, he can look for no good ſucceſſe, and muſt be ſelf-guilty of the mortall effects thereupon following: but of this ſee more in the abuſes of taking of Phyſick, Chap. 4. §. 6.
§. 9. Of indirect ſelf-murder by unthriftineſſe, &c.
4. Vnthriftineſſe.Fourthly, this indirect ſelf-murder is committed by wilfull unthriftineſſe and prodigality, whereby a man provides not, but miſpends the meanes of his livelihood, and ſo ſubjects himſelfe and his to the perill of famine, Deut. 2.19. Prov. 27.27.contrary to the light of nature, and Scripture.
A Caveat.Yet we are herein to be wary that for prevention of want of livelihood; we fall not into covetouſneſſe, and carking cares; or that we follow the world with neglect of better things; or that we ſhould ſpare more than is fitting; and ſhut up the bowells of compaſſion, with the overthrow of liberality, and workes of charity and piety.