Common Places, Part 4 · Chapter 16
The ſixteenth Chapter. Whether it be lawfull for a Chriſtian man to goe to lawe.
HEre nowe the place putteth vsus in remembrance to ſée whether it bee licenced vntounto a Chriſtian man to trie matters by lawe. In 1. Cor. 6.Thrée things to be ſpoken of.In which we will accompliſhe thrée thinges: Firſt, wee will prooue by firme and ſtrong Argumentes that it is lawfull. Secondly ſhall be ſet foorth the forme and waie wherein this ought to be. And finallie whereas there be certaine places in the holy Scriptures, which ſéeme to teach the contrarie, and that certain reaſons are woont to be brought which are thought to be a let, we will interprete the wordes of the holie Scripture, and will confute the reaſons obiected. The firſt place. Verſe. 1.As touching the firſt, the ſentence of Paul which we hauehave in ye 1. Epiſtle to the Corinthians the 6. Chapter plainely perſwadeth, that to goe to lawe is not forbidden: he reprooueth thoſe onlie, becauſe they went vntounto Infidels. Further becauſe they were ouercome with perturbations of the minde, in that they coulde not beare iniuries: finally becauſe themſelues did iniurie. Remooue thou thoſe faults that are reprooued, and what will remaine, but that cauſes may be heard betwéen faithful men in the Church, and that wiſe iudges maie be appointed, to diſcerne & pronounce iuſtly of cauſes? Acts. 15. 20 Paul appealed vntounto Ceſar.In the Actes of the Apoſtles Paul appealed vntounto Caeſar for defence of his owne life, he would not be iudged by the lieftenant of Iurie, becauſe he ſawe that his Tribunall ſeate was alreadie corrupted by the head Biſhops and Prieſts. He choſe Caeſar to bee his iudge, with whom his cauſe might be vnderſtoode. Wherefore before the Apoſtle were laide two vniuſt tribunall ſeates, and both of Infidels. That he choſe vntounto himſelfe, which ſéemed to hauehave leaſt diſcommoditie. Euerie godly man (ſo much as is poſſible) muſt eſcape the iudgements of the faithleſſe and vngodly: euen as wee at this day, will not bee iudged by the Pope, who holdeth all for excommunicate, euen ſo manie as will not be ſubiect to his Tyrannie. And the verie ſame Apoſtle (as we reade in the ſame Booke of Actes) ſent a young mā his ſiſters ſonne vntounto the Tribune, Acts. 23 17Paul cauſed that the …aying in waite of the Iewes ſhould be ſhewed vntounto the Tribune.who ſhoulde declare the conſpiracie which the Iewes made againſt him: and ſo was he ſaued and ſent againe by night vntounto Caeſarea. Whereby it appeareth, that it is not forbidden to implore the helpe of publike power.
Iudgement and Magiſtrates are inſtituted by God.2 Furthermore God did not inſtitute any thing which is againſt Charitie. But iudgement and Magiſtrates without all doubt are brought in by God, ſo as they are not repugnant vntounto charitie. Gen. 9. 6.We reade in Geneſis the 9. Exo. 18. 19. Deut. 1. 9.in Exodus the 18. and in Deuteronomie the firſt, that a Magiſtrate and iudgements are inſtituted by God. The Anabaptiſts crie that in Chriſtianiſme, there is required a farre greater perfection than in the old law, and therefore that arguments muſt not be ſought from thence. Theſe mad men vnderunder a colour of perfection endeuour to confound the world by a confuſed order of things. foreign.If we ſhoulde want Magiſtrates, woulde not murthers, robberies, and other miſchiefes euerie where abound? There is no hope that anie man might let offences to happen. For (as Chriſt ſaid) they muſt of neceſſitie happen. What doe theſe men meane? Matt. 18….Will they hauehave them puniſhed or not puniſhed? If they will ſay, vnpuniſhed, what ende or meaſure will there then be of calamities? But if they will hauehave them to be puniſhed, by whom at the length, ſhall puniſhments be executed? Doubtleſſe Magiſtrates being taken away, if euerie man puniſh and reuenge at his owne pleaſure, all things will be filled with a confuſed order, and while they faine to followe perfection, they will bring vsus into an vtter confuſion of things. Verſe. 19. Verſe. 9.Beſides this in the 18. Chapter of the Booke of Exodus, and in the firſt Chapter of Deuteronomie, God prouided with all diligence, that ye qualities and vertues of them which ſhould be appointed Iudges might be expreſſed, to the intent we may plainelie perceiue, that he had a ſingular care of iudgements. In Eſaie it is ſaid: Eſa. 1. 17.Seeke yee iudgement, helpe the fatherleſſe, iudge the widowe: and the like places wée méete withall euerie where in the Prophets. And in the Pſalmes it is ſhewed that God hath ſo great a care of iudgementes, Pſal. 82. 1.as he himſelfe will ſit with the Iudges. Wherefore it is ſaid, God ſtoode in the Synagogue, or in the companie of Iudges: he is Iudge in the middeſt of them. 2. Par. 19. ver. 6.And in Paralipomenon the Iudges are admoniſhed that it is not the buſineſſe of men which they execute, but the buſineſſe of God: The verie which thing is written in the firſt Chapter of Deuteronomie.Deut. 1. 10.
3 But leaſt theſe men ſhould thinke that a Magiſtrate and Iudgements are aſſured onelie by the olde lawe, we heare that they be eſtabliſhed in the Epiſtle to the Romanes the 13. Chapter, Rom. 13. 1. 1. Pet. 2. 13. That it is lawfull for godlie men to beare office.and alſo by Peter in his Epiſtle. And that it is lawfull for godly men to beare office, the examples of Ioſeph, Dauid, Ezechias, Ioſias, Daniel and his fellowes doe plainely declare. And in the new Teſtament Paul in the 16. Verſe. 23.Chapter to the Romans writeth: Eraſtus the Chamberlaine of the Citie ſaluteth you. Acts. 13. 1…And in the Actes of the Apoſtles, when Sergius Paulus the Proconſull was conuerted vntounto Chriſt, he renounced not his office. And that it belongeth to a Magiſtrate, to iudge cauſes, and take away contentions, by puniſhing and rewarding, it is perceiued by the definition thereof. The definition of a Magiſtrates office.For it is a power inſtituted by God vntounto the ſafetie of good men, and reprehenſion of euill men, by laying of puniſhments vponupon the one ſort and giuing rewardes vntounto the other. Yea and it is a moſt firme reaſon [to ſaie:] There bée lawes, therefore there be Iudges. And if there be iudges, there ſhall alſo be actions or pleadings of cauſes. If there be Lawes, there be alſo Iudges and iudgemēts.And we reade that the Iſraelites, euen at the verie beginning had controuerſies, which they brought vntounto Moſes. Whereuppon Iudges were appointed when as Moſes alone was not able to ſuſtaine ſo great a labour. And at the laſt was the lawe giuen vponupon Mount Syna, as wée hauehave it in the 20. Chapter of Exodus. Neither could the lawe in a maner bring any vtilitie, except that Iudges had bin appointed, which ſhoulde execute the ſame. Ariſtotle.Ariſtotle in his Politickes, called Iudges a liuely lawe. Séeing therefore Iudges (as it hath bin ſaid) be the worke of God, and by him are inſtituted, it is the part of godly men to ſet them forward. And it commeth oftentimes to paſſe, that thou art not able to helpe the poore, the fatherleſſe, the widowe and ſtraunger, and finallie them which are committed to thy truſt, and to deliuer them from their oppreſſours, vnleſſe thou ſhalt implore the aide of publike iudgements: and to forſake them thou maieſt not with a ſafe conſcience. As touching the poore and oppreſſed, Exo. 22. 21.the law admoniſheth eueriewhere: and howe thoſe which belōg vntounto vsus muſt be holpē, Paul vntounto Timothie wrote in theſe words: 1. Tim. 5. 8.He that hath not a care of his owne, & eſpecially of his familie, Eliſaeus. 2. kings. 4. 13.hath renounced his faith, and is worſe than an Infidell. Eliſaeus the Prophet offered himſelfe of his owne accord to intreate with the Magiſtrate for the widowe his hoſteſſe. And that we muſt not ſtraight waie depart from our poſſeſſions & fathers inheritaunce, the example of Naboth the Iezraelite doeth teſtifie, Naboth. 1. king. 21. 3who would not deliuer his vineyarde vntounto a Tyrant: and this he did not through a deſire that hee had of earthly things, but that he might obey the lawe of God, who after a iuſt maner diuided the landes amongſt the Tribes and families: as it is contained in the Booke of Ioſua, Ioſua. 13. Num. 36. 7.& forbad by the lawes, that they ſhould not be tranſferred from one familie vntounto another.
4 Moreouer if our neighbour can bée brought by the authoritie of the Iudge, from detaining of other mens goods, it ſhall not be vngodly to lawe againſt him, that he may at the leaſtwiſe be pulled from ſinne. And Auguſtine in his Booke De Sermone Domini in monte ſaieth, Auguſtine.that a ſeruant being conueyed awaie from a godly Maiſter, if it be knowen that he will be marred vnderunder the gouernment of him that intyſed him, and that he may be reuoked from thence and recouered by iudgement, he muſt not be forſaken. It alſo happeneth oftentimes that the Paſtors of Churches are hindered by the wicked from preaching, or from féeding the ſhéepe of Chriſt, and maie bee holpen by the publike power to execute their office fréely: then muſt they not delay to attempt by iudgement. For they then implore the helpe of GOD, when they goe vntounto the power appointed by him, and vnleſſe they ſhoulde this doe, they might ſéeme to tempt God. Sometimes alſo there maie happen a doubtfull caſe, and that betwéene the godly, for the iuſt poſſeſſion of ſome thing: whereas either of them would yéelde to other, and neither of them will hauehave himſelfe to be truſted, becauſe he feareth leaſt he doe challenge that which is another mans: and therefore with one conſent they couet to hauehave that which is doubtfull, to be determined by iudgement, whereby they maie with a more ſafe conſcience poſſeſſe that which they hauehave. And they which indeuour wholy to take awaie iudgements, doe giuegive an occaſion vntounto Iulian, Porphirius and Proclus, who ſlaundered Chriſtianitie that it was an aduerſarie vntounto lawfull Common weales.
5 Nowe ſéeing it is prooued, VnderUnder what cautions we muſt goe to Lawe.that it is lawfull ſometime for godly men to goe to lawe, let vsus ſée as touching the other point, with what cautions this muſt be doone. Firſt of all muſt be prouided, Pſal. 146. 3.that we miſtruſt not God, & that we put not confidence in Princes and Iudges. Such men doeth the holy ſcripture plainely deteſt, which pronounceth that we ought not to put our truſt in Princes, neither to put fleſh for our Arme. Beſides this let Charitie be kept inuiolate, Ier. 17. 5.ſo as wée account not for an enemie that aduerſarie, againſt whom we hauehave commenced action. Moreouer the powers of our minde muſt be examined, and we muſt take héede, that we be not led vntounto this by diſturbations of the minde or corrupt affections. For it is better to loſe the thing than to make a wracke of the ſpirit of lenitie and Chriſtian gentleneſſe. Neither yet ought we for this cauſe to goe vntounto the tribunall ſeates, that we maie either increaſe our patrimonie or reuenue: but the glorie of God & ſafetie of our neighbour muſt chiefely be reſpected. Alſo it is profitable, that he which is to deale againſt any man in iudgement, doe conſider the imbecillitie of man, and weigh how weake he himſelfe alſo is. For by that meanes (as Auguſtine wrote vntounto Macedonius) the vehemencie of accuſing is aſſwaged. Auguſtine.This did Chriſt commend when he anſwered the accuſers of the adulterous woman: Hee amongſt you that is without ſinne, Iohn. 8. 7.let him caſt the firſt ſtone at her. And as iudgements are at this day, we are to take heede, leaſt with the indeuour of contention, we caſt not both our ſelues & our aduerſaries into grieuous and vnprofitable expences. For iudgements are euerie where long differred, ſometimes by the treacherie & couetouſneſſe of Iudges, to the intent that they which be aduerſaries at lawe maie be polled. But yet the delaie of iudgements cannot all wholy bee condemned. For oftentimes in the giuing of ſentence there muſt be prouiſion made againſt the manifolde and ſubtill malice of men: for the diſcouerie whereof nothing is more woorth than delay. For in proceſſe of time many things are opened, which by craftes and ſubtiltie were hidden.
6 But it ſhould ſéeme that all meanes muſt be aſſayed before we come to ſute of law: euen in like manner as before warre is mooued, all remedies ſhould be ſought. And this would be verie decent for Chriſtiās that controuerſies ſhould be taken vp by arbitrators & common friendes. Which alſo ſhould not be wholie left vntounto Magiſtrates, for they ſhould be eaſed of verie great and gréeuous trouble. Séeing they are conſtrained oftentimes to ſit all the day long to heare cauſes, and the time which ſhould be imployed about councell matters for the Commonweale, leaſt it ſhould take anie harme, they are conſtrained to ſpend vppon aduerſaries at lawe. In olde time among the Romans, the degrée of gentlemen called Equites, did execute iudgement, afterward iudgementes did fall to the Senators, but yet not ſo as the whole Senate did iudge: for there were ſome certaine Senators choſen to this purpoſe. And this moſt of all is to be regarded, that in contending at lawe, we ſéeke not thoſe thinges which be ours, but which are Ieſus Chriſtes: which being hard to doe, there is nothing more fit to finde out the deceites and pretences of our owne thoughtes than to examine our ſelues. And ſéeing a man may ſée manie cauſes, for which it ſhall be lawfull for a Chriſtian man to contend at lawe: let him ſeeke, wherefore he verie oftentimes omitting thoſe honeſter ſort of cauſes, had rather now make ſute in lawe for riches and ſubſtance taken from him. And let him ſay with himſelfe: Manie a time haſt thou forſaken the poore oppreſſed, thou haſt not cared for the fatherleſſe children being ſpoyled, thou haſt not defended widowes being robbed: yea and thou haſt neglected godlineſſe, ſéeing thou haſt ſéene the ſame contaminated with blaſphemies and hereſies: And this that thou ſhouldeſt not doe, Deut. 15. 8. Deut. 24. & 26. & 27.is by expreſſe wordes forbidden in Deuteromie: Why doeſt thou now ſtraightway make ſute by lawe for thy field wrongfullie poſſeſſed by anie man? Deut. 13. & 17.doubtleſſe theſe things declare that thou art rather mooued through couetouſneſſe than for iuſtice ſake. It is now a common cuſtome, that although we looke vppon the wicked which deface the Commō weale, and which pollute and deſtroy Cities euerie where, yet in this poynt we are more dumb, than fiſhes. But if a little of our owne monie & ſubſtance be ſought for, we ſtraightway flie vntounto patrons and aduocates, and vntounto places of iudgement. Séeing then theſe be certaine tokens that thou art carefull for thine owne thinges, and not for that which belongeth vntounto God, or to thy neighbour, therefore he that ſhall perceiue theſe thinges in himſelfe, it is no ſure way for him to goe raſhlie to the lawe. In the meane time all this might be ſhewed to the aduerſarie, that he ſhould deſiſt from ſute of lawe, leaſt he breake charitie, leaſt he more ſéeke his owne, than thoſe thinges that belong to God and to his neighbour, leaſt both partes be preſſed with too much charges. For perhappes by the calling of theſe thinges to remembrance, his malice ſhall be aſſwaged. This alſo muſt be taken héede of, that thou goe not to lawe vnderunder euerie Iudge. Séeing thou oughteſt not to commit thy cauſe vntounto him, whome thou ſhalt perceiue to be altogether vniuſt, corrupt, or a contemner of Religion, vnleſſe thou be cōpelled thereto. If Paule appealed to Nero, Acts. 25. 10he did it after a ſort againſt his wil. He might not eſcape ye iudgement ſeates of wicked men, he choſe yt for him ſelfe, which ſéemed more fit for his vocation.
7 But now in the third place muſt be brought the ſentences of the ſcriptures, An expoſition of certaine places of the Scripture, ſéeming vtterlie to forbid going to Lawe. Matt. 5. 39.by which it ſéemeth that a godlie man is altogether forbidden to contend in iudgement. In Matthew the 5. Chapter it is written: If a man ſhall ſtrike thee on the one cheeke, turne thou to him the other: and he that would take thy cote from thee, giuegive him alſo thy cloke: and if one conſtraine thee to walke with him one mile, goe twaine with him. Theſe thinges ſéeme to perſwade, that we ſhould vtterlie abſtaine from contentions. Some thinke by this meanes to ſatiſfie thē ſelues becauſe they ſay that theſe are councels: but theſe men be deceaued. For whenſoeuer anie thing is offered vntounto vsus to be doone, which we vnderſtand dooth further the glorie of God, if we may doe it, and doe intermit it, we hauehave flatlie ſinned, becauſe the louelove which we owe vntounto God, with all the heart, with all the minde, and with all the ſtrength, is not kept. And if theſe thinges ſhould be eſtéemed as counſelles, and ſhould belong onelie vntounto them which be perfect, it would follow, yt Magiſtrats in not reuenging ſhould be more perfect, than if they puniſh & reuenge. And a priuate man by reuenging his owne iniurie, ſhould not ſinne, although he ſhould perhaps decline frō Chriſtian perfectiō, which things are moſt plaine abſurdities. Origen. Nazianzene.Wherefore Origen and Nazianzene, who againſt Iulianus & Proclus ſay, yt to reuenge, is no ſinne, but not to reuenge, is better & more perfect: doe aunſwere neither ſoundlie nor woorthie for a Chriſtian man. Theſe ſayings muſt be taken as preceptes & interpreted by compariſon, to wit, that we muſt rather deſiſt from iudgement, and from taking puniſhment of an aduerſarie: rather to ſuffer a blowe on the chéeke, to abide the loſſe of our Cloke, and to goe the iourney of two miles, than that charitie ſhould be violated, or that thou ſhouldeſt moue ye hatred of thy neighbour, or be an offēce vntounto ye weake, and ſhouldeſt follow thoſe thinges which be thine, and not thoſe which be Ieſus Chriſtes.
Reuenge is of two ſorts. Look part. 2 cap. 9. Ar. 328 And as touching reuenge, the ſame is of two ſortes: one publike, and an other priuate. The publike, which ought to be executed by the Magiſtrate, is required by God: ſo farre is it from diſpleaſing of him. Of the Magiſtrate it is ſaid, Rom. 13. 3.that he beareth not the ſword for naught. For he is the Miniſter of God to take vengeance of him that dooth euill. But priuate reuenge is lawfull vntounto no man. Auguſtine.And Auguſtine vntounto Marcellinus writeth: Not to reuenge, is to abſtaine from the deſire of reuenge: And there he plainely writeth, that theſe be without doubt preceptes, and alwayes neceſſarie as touching the preparation of the minde: but as touching external execution, yt muſt alwayes be doone, which we perceiue to make moſt for the glorie of God, and the ſaluation of them with whome we deale. For Chriſt when he was beaten by a ſeruant of the high prieſt, Ioh. 18. 23.did not turne his chéeke to him, but rather reprooued him, when as neuertheleſſe he was readie as touching the minde, both to die, and to be crucified for his ſaluation. And euen this did Paul ſhew, Acts. 23. 3.when he being ſtriken aunſwered the high prieſt: God ſhall ſtrike thee, thou painted wall, who neuertheleſſe was readie to ſpend both him ſelfe and his life, for the ſafetie of the faithful. Wherefore, if a neighbour through our patience be made the woorſe, we muſt not ſtay from reproouing & accuſing: ſo farre is it off, that thou ſhouldeſt ſhewe outward gentleneſſe vntounto him. Thoſe thinges which Chriſt ſpake in theſe places, belong not vntounto Magiſtrates, but vntounto priuate men. And when he ſaid that his kingdome is not of this world: Ioh. 18. 36.he remooueth not away thoſe things which ſerue to the neceſſarie adminiſtration thereof, but would hauehave them to remaine perfect and ſound. Neither muſt we thinke, that charitie is violated, when as puniſhmentes are doone by the publike power for great offences. And this doe parentes ſhewe, when they beate their children: For by that meanes they omit not to proſecute them with fatherlie good will. Torquatus put his ſonne to death, for the ſafetie of the Commonweale: whome neuertheleſſe he ceaſed not to louelove, as it became a father. Auguſtine.And Auguſtine againſt Fauſtus the 2. booke ſaith, Exod. 32. ver. 11. 25.Moſes fiue manie thowſandes for the Idolatrie [committed to the] golden Calfe: but that he kept charitie towardes them, the prayers which he had before the ſlaughter of them doe declare: If thou let them goe (ſaith he) it is well, if not, Ib. ver. 32.wipe me out of the booke of life. Yea and God himſelfe which is the principall charitie puniſheth his elect, and chaſticeth them, but he ceaſeth not to louelove them.
9 And when it is written: Matt. 5. 38.You hauehave heard that it hath bin ſaid: An eye for an eye, and a tooth for a tooth: but I ſay vntounto you, reſiſt not euill at all: We are not to beléeue that the olde lawe fauored priuate reuenge, which in Leuiticus is in plaine wordes forbidden: Leuit. 19. ver. 18.Seeke not the reuenge of the Sonne of thy people. Yea and rather charitie is commaunded towardes our enemie, ſéeing euerie man is commaunded to take home vntounto him his enemies Oxe and Aſſe that goeth aſtray, Exod. 23. 4. & 5.and to reſtore the ſame vntounto the owner: and alſo to helpe his enemies Aſſe if it ſhould be fallen and preſſed vnderunder his burden. But in that lawe of rendring one for an other, the Iudge was inſtructed what he ſhould doe in the puniſhing of offences. And Chriſt when he ſaid: But I ſay vntounto you, Matt. 5. 39.reſiſt not euil, amendeth the peruerſe interpretation of the Scribes, which taught men to come vntounto iudgementes being led with a deſire alſo of reuenge, that they might craue of the Iudge, An eye for an eye, and a tooth for a tooth, with the deſire of reuenge. Chriſt ſaid: The matter is not ſo: As much as in thée is reſiſt not euill. Yet he forbiddeth not, but that if thou for the benefit of an other, and for the glorie of God, wilt attempt the lawe, it may be lawfull for thée. Some obiect, that God would that thou ſhouldeſt ſuffer the taking away of theſe goods, to the intent that ſuch and ſuch might be puniſhed. If thou by iudgementes dooſt indeuour to withſtand, thou ſeemeſt now to reſiſt the will of God. Howbeit theſe men are groſſely deceiued: ſéeing it is no firme conſequence: God would that we ſhould otherwhile be ſicke, therefore we muſt not vſe Phiſitions and medicines, God will that both we ſhould be ſicke and yt we ſhould vſe medicines.becauſe God hath prepared theſe thinges alſo, and if thou apply not them, thou ſhalt tempt him. God will both that thou ſhouldeſt be ſicke, & that through medicines thou be helped. In lyke manner alſo he will that we ſhould ſuffer ſome loſſe, and that we ſhould not turne vntounto blaſphemies againſt God: but he will in like maner that we ſhould not deſpiſe the remedies of ye iudgements which he himſelfe hath ſet foorth. It is onelyonly the minde of the vſer that maketh theſe thinges either good or euill. The Apoſtles who being ſometime ſtirred vp with a deſire of reuenge, craued that fire might come downe from heauen againſt the Samaritans, Luke. 9. 55.were forbidden that they ſhould ſo deſire, becauſe they knewe not of what ſpirit they were. But euen to the ſelfeſame Apoſtles, being now confirmed by the holie ghoſt, and being voyde of perturbations of the minde, it was graunted to ſlay by the word: Acts. 5. 5. Acts. 13. 11For Peter ſlew Ananias and Saphira. Paul deliuered vntounto Sathan, and made Magus blinde.