Common Places, Part 4 · Chapter 14 · Section 5
VVhether it be lavvfull to releaſe iuſt punishments which are inioyned by lavves.
In 1. Sam. 11. ver. 13.23 Of this queſtion there be many Arguments on both parts. For firſt kings are ſtirred vp vntounto clemencie, which woulde bée doone in vaine vnleſſe they might forgiue. Alſo Dauid forgaue ſeditious men, 2. Sam. 19. ver. 23.and ſware vntounto Semei, that he woulde not puniſh him. And Paul commendeth Oneſimus, Phil. 9.a fugitiue ſeruant, vntounto his Maiſter Philemon & prayeth him to forgiue him his fault. And the vſe was among Chriſtian Emperours that in the wéeke before Eaſter, That puniſhments may be releaſed.when the memorie of Chriſt his death was celebrated, the priſons were ſet at large. And amōg the Iewes the cuſtome was, Mat. 27. 15.that in Eaſter ſome one condemned man ſhould be ſet at libertie by the chiefe Ruler. Alſo Auguſtine made interceſſion oftentimes for the Donatiſtes and Circumcellions, which had not onelyonly troubled 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 vntounto 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. That it is not lawfull to forgiue iuſt puniſhments.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 Deuteronomie. And in the ſecond of Paralip. the 19. Deut. 1. 17. 2. Par. 19. 6.Chapter Ioſaphat ſaieth: Exerciſe iudgement, not onelyonly 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 puniſhments 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, Verſe. 16.that the people deſired that God himſelfe would not ſpeake vntounto them, becauſe they might not abide ſo great a Maieſtie: and for that they choſe rather to heare Moſes to be the interpretour: that GOD heard theſe prayers of the people, and promiſed not onelyonly that he woulde giuegive Moſes vntounto them, but alſo woulde prouide that no Prophet ſhould at any time be wanting vntounto them. A Prophet (ſaieth he) will I raiſe vp vntounto 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, Verſe. 8.yee ſhall goe vp to the high Prieſt or vntounto a Leuite: 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 onelyonly a Prophet but alſo a iudge; they gaue not eare vntounto him therfore they were worthie of death. In déed, GOD might hauehave forgiuen them, but the Prince could not. Furthermore there is a waie opened vntounto miſchiefes, when men promiſe to themſelues, that either through grace or rewarde they ſhall eſcape vnpuniſhed. This alſo may bee prooued out of the hiſtories. God commaunded that all the Amalachites ſhould be ſlaine, Saul ſpared Agag their King: 1 Sa. 15. 2. Ib. ver. 9.he was grieuouſly reprooued by Samuel, becauſe this was not lawfull for him to doe. Ib. ver. 14.And when the king of Iſrael had ſpared Benhadad the king of Syria, whō God had commanded to be ſlaine: 1. kings. 20. 35.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 eſcape that is guiltie. Yea and the Lord ſaith: Thou ſhalt take awaie the murtherer from my Altar, and ſhalt put him to death. Deu. 19. 12.Finally, if this ſhould be permitted vntounto Princes, iudgements of death would be ſolde, and the execution of Iuſtice ſhould be at pleaſure of the Magiſtrate. Thus hauehave we Arguments on both parts.An anſwere vntounto the queſtion propoſed.
25 But here muſt we conſider, that ſome lawes there be humane, and other ſome diuine. And it belongeth much to the ſtate of this queſtion, whether ſort they be. For humane lawes, becauſe they procéed of a weake reaſon, are neuer perfect: neither can they comprehend all things, or foreſée all chaunces and circumſtances. Why the rigor of the Law muſt not be followed.Wherefore oftentimes, if we ſhoulde ſeuerely and ſharpely vrge the wordes of the lawe, many vniuſt things would be decréed. And ſo, there is oftentimes néede of moderation, An interpretation of humane lawes is néedefull.and interpretation, and correction of the lawe. And moderation 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 doubtfull, 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 hauehave in the Pandectes, De legibus & 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 diuines diligently to weigh and examine the lawes of God and to expound ſome places by other places, The interpretation of the diuine Lawes, by whom and how.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, A comparing together of diuine lawes. Exo. 20. 11.when both of them cannot bée kept, whether is to be preferred before the other. For example: The lawe is that the Sabaoth day muſt be kept holy: there is another 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. Oſee. 6. 7.For God ſaith: I will hauehave merciemercy, not Sacrifice. And Chriſt anſwereth: that it is lawfull to doe good on the Sabaoth daie. Luke. 6. 9.The Lawe of God is, Exo. 20. 12.that we muſt obey our Parents. Another lawe is, that we muſt obey God: the Parentes commaund ſomething, which is againſt the lawe of GOD: héere the better lawe muſt be kept: to wit, that we obey God. This is lawfull for vsus 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 vsus. Wherefore let Pigghius take héede what moderation it is by which he teacheth vsus that we ſhould vnderſtand the firſt precept: Thou ſhalt louelove the Lorde thy God with all thy heart, with all thy ſoule, &c. Deut. 6. 5.For ſéeing this cannot be, he ſaieth, that the wordes of the lawe muſt be mitigated by a fit interpretation. Matt. 26. ver. 26.Chriſt gaue and inſtituted his Supper, and commaunded that the ſame ſhould be miniſtred in both kindes. But the Romane Antichriſt ſaieth: that many chances may happen by reaſon of beardes, of diſeaſes, of ſhedding of the bloud: therefore the Cup muſt be plucked from the laitie. God in the holy aſſemblie would hauehave all things to bee miniſtered in the vulgar and knowne tongue. Neuertheleſſe theſe men ſay, 1. Cor. 14. 1that their myſteries muſt not be raſhly prophaned: 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 interpretations, but humane lawes they may, becauſe they be inacted by them.
26 Furthermore ſome commandements forbid a thing to be doone, others commaund or (as the Schoolemen ſpeake: Precepts affirmatiue & negatiue.) 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 hauehave great ſtrength, yet doe they not perpetuallie binde. If any ſhal giuegive vsus a blowe vponupon the right chéeke, Matt. 5. 39.wee are commaunded to offer vntounto him the left. Aſſuredly wee ought alwayes to hauehave 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 being ſtriken, aunſwered: If I hauehave ſpoken euil, Ioh. 18. 23. Acts. 23. 5.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 giuegive Almes. Yet doeth he not commaunde that we ſhoulde alwaies doe theſe things. But to what purpoſe is all this? Deut. 17. 9. How farre foorth the precept that cōmandeth to puniſh, doth binde.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 alwayes, but when it may be doone: Somewhat otherwiſe in the 15. and 18. Articles. Compare with them and with the 25 & 26. following. 2. Sa. 3. 27.and ſometime it happeneth that it cannot be. Neuertheleſſe 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, 2. Sa. 20. 9.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. 2. Sam. 19. ver. 23. 1. Sa. 11. 13.In like maner Saul, leaſt any trouble or ſedition ſhould ariſe, or leaſt that the election ſhould be diſturbed, woulde not at that time kill the rebels. For otherwiſe he might not hauehave forgiuen them thoſe puniſhmentes which were appointed by God. Nay rather he coulde not by ſacrifices hauehave purged a ſinne which had bin doone with a ſtretched out hand and of ſet purpoſe.
An anſwere to the arguments of the aduerſaries.27 Now let vsus make anſwere to the Arguments which are woont to bee obiected: whereas they ſay, that Princes are often ſtirred vp vntounto clemencie, it behooueth to vnderſtande 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 crueltie of the minde, and is not mooued at the miſeries of men. Who is mercifull. Look before Art. 1.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 neceſſitie to releaſe puniſhments, he is not mercifull. This vertue (as ſaieth Seneca,) doeth chiefelie belong vntounto 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 hauehave no publike power of puniſhing, maie forgiue manie things, yea and oftentimes alſo ought: howbeit they ſhoulde not bee called mercifull, but gentle. 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 vertue is a certaine forme of right reaſon. Clemencie doeth make the lawe ſomewhat to yéelde. But ſeueritie is by no meanes turned. And ſometime the one is to be vſed and ſometime the other. If there happen an outragious cauſe, ſeueritie muſt bee vſed, not clemencie. Sometime the cauſe is made the lighter by circumſtances: then there is place for clemencie. Doubtleſſe clemencie, although 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 puniſhments. And when the mercifull man remitteth 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 puniſhment due is altogether remitted, it is no clemencie but pardon, and that is to be hoped for from God alone. Which the Iewes alſo vnderſtoode when they ſaid: Mark. 2. 20Who is this that forgiueth ſinnes? Yet doe the Papiſts bragge, that they and theirs can giuegive a pardon of ſinnes. But thou wilt ſay: If ſo the caſe ſtand: then might other princes vſe clemencie, but the Iewes might not, becauſe they vſed the lawes of God. I anſwere, How farre forth the Iewes might vſe clemencie. Leui. 19. 35 Deu. 25. 13that 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, Deut. 25. 2.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. Exo. 20. 2….There was another lawe that the ſeruant which had ſolde himſelfe into the power 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. Wherefore not in vaine was clemencie often repeated vntounto the Princes of the Iewes. For it was lawfull to vſe the ſame both in the humane lawes ſet foorth by them, as I hauehave 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, An example of Auguſtus Caeſar.that that lawe which we hauehave, Ad legem Iuliam maieſtatis, was humane. For by what puniſhment conſpirators muſt be afflicted, it was decréed by princes, and ſo that lawe might be mitigated by him. He iudged it would be ſufficient, if he had gréeuouſlie rebuked Cinna: And aſſuredlie we reade in that hiſtorie, that he was greatlie vexed: and therefore he iudged it better, to remit ſomewhat of the puniſhment. But how ſmall a portion muſt be remitted, ….iuſt moderation dooth declare. But humane lawes, when they followe the preſcript 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. An example of Dauid. 2. Sa. 19. 22.Dauid forgaue Semei: I graunt, but yet when he perceiued that it was not lawfull that he ſhould goe vnpuniſhed, he commaunded Salomon that he ſhould not ſuffer his gray hayres to eſcape vnpuniſhed vntounto 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 againſt his poſteritie. Further he had confirmed 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, 1. kings. 2. 31.who had killed two better men. For he ſawe that he was able to doe much with the armie: Wherefore he alſo remitted him vntounto Salomon. Howbeit it cannot be denyed, but that Dauid ſinned, both when he abſolued Amnon of Inceſt, and Abſolon of parricide. But what Dauid refuſed to doe, that did God himſelfe afterward by himſelfe. 2. Sa. 13. 29. 2. Sa. 18. 9.For Amnon was ſlayne by Abſolon, and Abſolon being hanged on a trée, was thruſt through by Ioab with a ſpeare. And whereas Paul commendeth Oneſimus vntounto his Maiſter Philemon, Phil. 9. An example of Paul.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 forgiue priuate iniurie, which is a common thing vntounto all Chriſtians. He prayeth (I ſay) Philemon to let paſſe his wrath. And that he dooth not againſt the lawe of God, but according to the ſame. Deu. 23. 15For in Deuteronomium, there is a lawe, If an other mans ſeruant ſhal flye vntounto thee, thou ſhalt not reſtore him to his Maiſter, which muſt be vnderſtoode: ſo long as his Maiſter is in a rage and vnpatientlie diſquieted. This was profitable to the Maiſter leaſt he ſhould ouermuch féede his wrath: and vntounto the ſeruant, leaſt he ſhould be ouermuch puniſhed,
Mat. 27. 15.29 But the fact of the Romans, in that at the feaſt of Eaſter they releaſed vntounto the Iewes ſome man that was bound and condemned, we cannot alowe. An example of the Romanes.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. An example of the Chriſtian Princes.The ſelfeſame reaſon it was why Chriſtian princes in the holy wéeke [of Eaſter] would open the priſons, 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 vntounto miſchiefe. But princes cannot eaſilie hold the meane. And in like caſe, as they will hauehave the Miniſters 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 adminiſtred ſeuerelie. And as touching Auguſtine, 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 perſons 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 ſéemed 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, The example of Auguſtine.ye example of Auguſtine ought not to preiudice anie mans opinion, 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 vntounto 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 priſon while the ſame be knowen. Neuertheleſſe the cauſe being manifeſt, God himſelfe commaunded, 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 aſſuredlie the wiſe men hauehave 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 lawes, Deut. 13. 8.was in no wiſe to be remitted. Let not thine eye (ſaith God) ſpare thine owne wife that ſleepeth in thy boſome.
What is the office of a king in promotion of godlyneſſe, looke the Epiſtles 18. and 36. at the end of this booke.