Common Places, Part 4 · Chapter 14 · Section 3
VVhether it be lavvful for Magiſtrates to let the guiltie paſſe vnpunished.
5 This ſentence is plainelie gathered out of the Scriptures, In 1. kings. 20. at the end.that the Magiſtrate ought not to ſet frée thoſe whom God hath deliuered to be puniſhed. But ſome man will obiect, that the Moabites, Ammonites, and Edomites, which ill vexed and betrayed the Hebrewes who fled vntounto them, when they were ſpoyled by the Chaldeans, were ſharplie rebuked by ye Propeht Amos though notwithſtanding God had brought vppon them that calamitie. Amos. 1. & 2.Yea and the Chaldeans themſelues are reprooued by the Prophet, Pſal. 137. 8.becauſe they dealt ill with the Iewes. I aunſwere, that the Iewes were not deliuered to the Moabites, Ammonites, and Edomites to be puniſhed, but vntounto the Chaldeans, as the Prophets hauehave propheſied. Séeing then God reueiled nothing at all vntounto theſe people as touching the deſtruction of the Iewes to be executed by them, they were iuſtlie reprehended, and condemned of crueltie. For ſéeing they were their neighbours, and after a ſort a kin, they ſhewed them not ſuch curteſie and intertainement in that their calamitie, as they ought to hauehave doone. But the Chaldeans are therefore reprooued, becauſe they excéeded meaſure againſt thoſe which were ouercome. Neither became they cruell againſt the Hebrewes, to ſatiſfie the will of God, but to fulfill their owne hatred & ambition. But what ſhall we ſay to Auguſtine, who would hauehave thoſe that were guiltie and condemned, to be deliuered and yéelded vntounto him by the preſidentes of Aphrica, ſo they would promiſe to amend and repent? For he ſaid that this was a part of his duetie, & vnleſſe he obtained what he deſired, he was offended, and complained that he could not obtaine that of authoritie which belonged to his office. Macedonius who had giuen into his handes one that was guiltie, wrote vntounto him, that he marueled how this ſhould belong vntounto the office of Byſhops, and he alleaged his reaſons why it ſhould not ſéeme ſo to be. Wherefore ſéeing there be Argumentes both on the one part & on the other, I hauehave thought good to ſet them downe to affirme what muſt be determined of the queſtion. And for this end is this Treatiſe: becauſe the guiltie are deliuered by God vntounto Magiſtrates, to the end they ſhould be puniſhed by the Lawes: therefore it ſéemeth not in their power to let them goe vnpuniſhed. But Auguſtine taught otherwiſe.
Reaſons of Auguſtine for the forgiuing of offenders.6 And in the firſt place I purpoſe to alleage his reaſons. The firſt is, when repentance commeth, and promiſe of amendment, ſinnes (as he writeth) are become more veniall or pardonable: wherefore ſomewhat of the ſeueritie of puniſhment muſt be forgiuen. Secondlie the Magiſtrate in puniſhing, ought to ſéeke nothing elſe than amendment or correction of faultes. And this is the beſt way of amending, that he which is guiltie ſhould repent and purpoſe to liue better. Thirdlie after this life there is no place of amendment & correction: and it is daungerous, leſt if they ſhould ſtraightway be put to death, they might fal into euerlaſting puniſhments which ſhould neuer hauehave ende, therefore life muſt be graunted them that they may repent and amend. Fourthlie it becommeth princes to imitate God, Matt. 5. 45.& he deſtroyeth not the vngodlie, but maketh his ſunne to riſe vppon the good and bad. And he ſuffereth and cheriſheth them with moſt ample benefites, whereas notwithſtanding he verie well knoweth both what they are and what they will be. So that Princes ſhould much rather pardon offenders, ſéeing it is vnknowen vntounto them what manner of men they will become at the length. He confirmeth his reaſon out of a place in the Epiſtle to the Romans, wherein it is ſaid: Rom. 2. 4.Doeſt thou not know that the goodneſſe of God leadeth thee to repentance? We (ſaith he) doe imitate God, when we would not hauehave the guiltie to bee deſtroyed but to be kept vntounto repentaunce: Princes alſo ſhould followe this. God doeth not puniſh verie manie in this worlde, yet doeth he otherwhile bring puniſhment vponupon ſome, leaſt he ſhould ſéeme to hauehave caſt off the care of the world. But he ſuffereth many to goe vnpuniſhed, that we may perſwade our ſelues that once at the length ſhall be the general iudgement, wherein according to their deſertes he wil puniſh them that be obſtinate and grounded in ſinnes: but thoſe which promiſe repentance and amendment, he giueth to the Church. Fifthly the heauenly father hath commanded, Matt. 5. 44.that we ſhoulde louelove our enemies: but they which are condemned to death for their miſdéedes, be enemies of mankinde: ſo according to the word of God we ought to beare them good will. But we can wiſh no better to them than ſaluation, that is repentance, amendment and eternall felicitie. Sixtlie, in the Church, they ſhall not ſtraightway be admitted vntounto the holie ſupper. Firſt their minde ſhall be tryed by that publike repentance, they ſhall poure out teares in the holie congregation, they ſhall craue the ayde and prayers of the Church, they ſhall faſt, they ſhall goe in the habite of Mariners, and they ſhall exerciſe themſelues in godly workes. What elſe is this than to puniſh themſelues iuſtlie? Wherefore thoſe whome ye ſhall let goe, ſhall not eſcape among vsus vnpuniſhed. Seuenthlie that which we deſire is eaſie, not onelie poſſible vntounto you, becauſe ye hauehave the power of life and death ouer them for whome we intreate. Therefore, when ye yéelde them vntounto the Church, ye depart not from your duetie. For you excéede not the charge committed vntounto you. Eightlie: that which we require of you, I would not hauehave you to doubt, but is for your owne profit. For ye as well as other Chriſtians hauehave néede of merciemercy, vnleſſe ye thinke your ſelues altogether frée from ſinne. Then ſet them frée vntounto vsus, that your fault may alſo be forgiuen by God. Ninthlie it is méete that ye ſhould follow the example of Chriſt. Iohn. 8. 11.He acquited the adultereſſe which was guiltie of death, he condemned her not: onelie he exhorted her to amendment, ſaying: Go thy way, ſinne no more. Tenthly: After all this, conſider ye the fact of Ioſeph the huſband of the bleſſed virgin: Matt. 1. 19.He being otherwiſe a iuſt man, was ſo mooued with merciemercy towardes his ſpouſe, as although he knew her to be great with child, yet would he not put her to open ſhame or by accuſing her of adulterie, abandon her to extreme puniſhment. Againe ye ought to hauehave a conſideration of mans infirmitie, which is ſuch, as being well weighed, it may not onelie aſwage the griefe of the accuſer, but alſo the rigor of the Iudge. Furthermore ye ciuill men, which would be accounted honeſt, boaſt euerie where as a token of good nature and gentleneſſe, that ye had rather defend in place of iudgement than accuſe: therefore ye ought not to be offended at vsus, if we ſeeke the preſeruation of them that be guiltie. Neuertheleſſe, betwéene interceſſion and defence, there is a great difference: For he that defendeth that which is layd to ye charge of the guilty, affirmeth it to be well doone, the which we doe not. For neither doe we comfort and excuſe théeues and murtherers & other malefactors, but confeſſing that they hauehave offended, we make interceſſion for their ſafetie. Moreouer, the maner of ciuill men is, that if they ſée broyles riſen in an other mans houſe, for that the father would puniſh the ſonne, or the huſband his wife, they come betwéene them and intreate that the matter may be pacified. And what they themſelues would puniſh in their owne houſe, they intreate that it ſhould not be puniſhed in the familie of an other. Hereunto, euen you your ſelues which be rulers of the people of Rome, doe ſometime in the Eccleſiaſticall Synodes, make interceſſion for ſome prieſtes, that they be not more ſharply dealt withall and according to the ſeueritie of the Canons of the Church. Wherefore that which you graunt vntounto your ſelues towardes the Church, graunt in like manner vntounto vsus to vſe at your tribunall ſeates and at your executions. Laſt of all, we while we craue of your power this kinde of obedience, chiefely hauehave this regard, that vntounto the miniſterie of the Church, and vntounto the word of trueth which we preach, we may winne the louelove and goodwill of the people. For whē they ſhall perceiue that the Miniſters of the word of God and the paſtors of the Church, doe ſo deſire & thirſt after the ſaluation euen of moſt wicked men, they cannot chooſe but louelove them, and gladlie giuegive eare vntounto them.
7 And this laſt Argument, as it ſéemeth to me mooued him to make theſe demaundes. Yet doe I not ſée that other Byſhops, eſpeciallie thoſe of the Eaſt part, were earneſt in this matter, ſo farre as I might diſcerne by the moſt ancient Eccleſiaſtical hiſtories. Howe the repentance of the guiltie might be prouided for.But as touching the ſaluation and repentance of the guiltie, there was no cauſe why the biſhops ſhould ſo much diſquiet themſelues, if the Miniſters were brought to the pryſons of the condemned men, before they were put to execution. For by exhorting them, by warning and teaching them thoſe thinges which ſerue vntounto repentance and amendment, they might as they doe in our dayes hauehave brought them by the helpe of God vntounto acknowledging of their ſinnes, and ſound repentance. But I perceiue not that this wholeſome ordinance in times paſt was in vſe in the Church, eſpeciallie when the Emperours now profeſſed Chriſt. Now that we hauehave rehearſed the reaſons of Auguſtine, I thinke good to admoniſh you hereof, to wit, that the letting goe of Benhadad which is declared in the 1. 1. Kings. 20. ver. 23. The ſending away of Benhadad was vnlike to that which Auguſtine vrged.booke of kinges the 20 Chapter, is not in all parts conformable vntounto the pardoning which the Byſhops required of the Magiſtrates for them which be guiltie. For neither anie high prieſt, nor prieſt at all made ſute for Benhadad. Further he himſelfe made no promiſe of repentance or amendment, yea, and there was nothing at al ſpecified concerning Religion. Yet there remaineth ſome likelihood that on both ſides he is let goe, whom God had deliuered vntounto the Magiſtrate to be puniſhed.
8 But after the reaſons of Auguſtine let vsus heare the Arguments of Macedonius. The arguments of Macedonius againſt Auguſtine.Firſt he ſaid: In this letting goe, we ſéeme to allowe that which we woulde hauehave puniſhed, but it is ſinne that we would hauehave puniſhed: therefore we ſeeme to allowe of ſinne it ſelfe. So then we make our ſelues guiltie, becauſe the allower and authour of the offence are both alike culpable, wherefore we are ſubiect to the ſame kinde of offence that they be whom we ſo let goe. Auguſtine anſwereth: We while we craue to hauehave thoſe yéelded vntounto the Church, ſéeke it not to the ende that ſinne ſhould goe vnpuniſhed, but rather amended. Euen as God when he maketh the Sunne to ariſe vppon the wicked, doeth it not that ſinne ſhoulde eſcape vnpuniſhed, but (as the Apoſtle ſaieth) by his goodneſſe prouoketh them to repentance. Moreouer wee woulde in any wiſe that ſinnes ſhould be puniſhed, howbeit by an other kind of puniſhment, that is, by repentance, not by the ſword of authoritie. Secondly Macedonius obiected: The ſword of the ciuill power will be in vaine: to what end ſhould there be priſons, Gallowſes, hangmen, executioners, & ſuch like, if guiltie perſons as you would, ſhould be let goe vnpuniſhed? But Auguſtine ſaieth, that theſe things are not in vaine: becauſe they puniſh the impenitent and obſtinate: but others which promiſe that they will amende their life, your power and inſtruments of puniſhments doe bring them hereunto. For vnleſſe they ſhoulde be terrified by this meanes, they would continue in their miſchiefe. So as our interceſſions are nothing at all againſt your ſeuere power: nay rather if the ſame were not, our interceſſions ſhould hauehave no place. Moreouer for this cauſe are they auaileable, that we maie leade a peaceable and quiet life among the wicked. Thirdly Macedonius argued: The puniſhments that we lay vponupon the guiltie, are either iuſt or vniuſt: if they be vniuſt, let them be remooued and let them no more appeare in the Common weale: but if they bée iuſt, wherefore doe you hinder them with your interceſſions? Auguſtine anſwereth: They be iuſt againſt them which bee ſtubborne and obſtinate in their ſinnes: but when there commeth promiſe of amendment and repentaunce, forſomuch as the guiltie perſon is changed, the puniſhments muſt alſo be changed or taken away. Hereunto Macedonius addeth: They which are ſo deliuered, it commeth often to paſſe, that they afterward fall againe into the ſelfe ſame vices, or elſe commit thoſe that bee more grieuous. Auguſtine anſwereth: Séeing this is not doone by our fault nor will: neither doe wée make interceſſion for them that they may become ſuch euill perſons againe. Macedonius ſaid yet further: Others being corrupted by this example will more vehemently runne aſtray, and ſo all things will be filled with theft and robberies. Whereunto Auguſtine ſaid: God alſo will eaſily ſuſtayne this kinde either of reproche or cauillation. Why doe we not alſo ſay that euill men are corrupted to commit daylie more and more grieuous ſinnes, through the good will of God, whereby he ſuffereth and cheriſheth the wicked? Laſtly Macedonius had reſpect vntounto the loſſes and hinderances doone vntounto Citizens, and ſaid: It wil by this meanes come to paſſe, that things taken awaie by theft and robberie will not be reſtored. VntoUnto this Auguſtine ſaieth: It would in no wiſe be ſo: for that is reckoned to be no true repentance wherein other mens goods are retained: neither is the ſinne forgiuen vnleſſe there be a reſtitution of the thing ſtolen. But yet he ſhewed after what maner: namely that if it may be or if the guiltie mā hauehave other mens goods in his handes. Howbeit otherwhile theſe robbers and théeues doe ſtraight way conſume thoſe thinges which they hauehave naughtily gotten, doe riotouſly waſte and deſtroy them, and when as there remaineth with them not one iot thereof to reſtore: when they hauehave changed their minde, they muſt be giuen to the Church, leaſt they bée perpetually afflicted without a cauſe, and their repentance be hindered. Theſe things hauehave we heard to be ſpoken of Auguſtine and Macedonius, according to both partes of the queſtion propounded. I might adde, that Iames in his Epiſtle wrote, Iames. 2. 13that iudgement without merciemercy remaineth vntounto him who hath not ſhewed merciemercy: Eze. 18. 32.and alſo that Ezechiel who vnderunder the perſon of God ſayeth: I will not the death of a ſinner, but rather that he be conuerted and liue.
9 Some man perhaps will maruell why Auguſtine ſet not downe among his reaſons, A conſideration of the reaſons of Auguſtine and Macedonius.that the guiltie ſort muſt alſo be ſpared becauſe they be ignorant, or be ſtirred vp by their luſtes, or fraile affections, and therfore doe fall into ſo gréeuous offences. Héereunto I anſwere: Perhaps Auguſtine comprehended this kinde of Argument when he ſaide: That mans infirmitie muſt be conſidered. And certainlie, to be ignorant and ouercome with luſtes pertaineth to imbecillitie. Howbeit we might otherwiſe anſwere; that he prudently omitted this, becauſe he would not ſuſtaine the perſon of a defender, but of an interceſſour. It was none of his part to miniſh or extenuate ſinne: He confeſſed thoſe things to be noughtilie doone for the which he intreated, but he craued a remiſſion Furthermore they which committed thoſe things which they knew to bée puniſhable by the publike lawes, knew them to be ſinne. They which be ſtirred vp with luſts, cannot be compared to the phrentike m…n.Neither can they which be ſtirred vp with luſtes be compared (as of ſome they be) vntounto them that be phrenticke and out of their wit, who are rather to be pitied than puniſhed, for as yet reaſon raigneth in thoſe men, but in the other it is extinguiſhed or elſe ſtopt. Moreouer the phrenticke perſons doe not procure the euill vntounto themſelues, but they which obey luſtes, doe otherwhile ſtirre them vp: they ſéeke occaſions, they ſhunne them not nor yet wreſtle againſt them, neither doe they repreſſe outward actions; which they might doe although they were not yet regenerate. Wherefore the compariſon is verie vnlike.
To the firſt reaſon of Auguſtine.10 But becauſe the reaſons of Auguſtine (vnderunder correction of ſo notable a man) be not firme, therefore muſt they be confuted. Which as it is eaſie to be doone, ſo I iudge it verie profitable. Firſt he ſaide, that ſinnes are more pardonable, as he termeth it, when they hauehave promiſe of amendment and alſo repentance ioyned with them, and therefore ought no longer to be puniſhed ſeuerelie. VntoUnto this we anſwere, that ye pardon which followeth faith vntounto which is adioyned repentaunce is obtained of GOD, and pertaineth not to the ciuill Iudge, who hath reſpect to a thing already doone, not vntounto thoſe things that be preſent. To the ſecond.He added, that the ſeueritie of lawes ſéeke correction, but that thoſe men are corrected by amēdment of life and repentance, and yt therfore nothing elſe muſt be any more wreſted from them by violence. But correctiō is ſought for by ye Magiſtrats, not onelie for his cauſe yt is puniſhed, but alſo for other mēs ſakes, which are terrified through beholding of ye puniſhmēt, ſo as they maie deſiſt from that kinde of ſinne, which they ſée is ſo ſeuerely puniſhed, or elſe to beware that they fall not into ſuch heynous offences. Wherefore it is written in Deuteronomie, Ver. 1. &c.the 13. Chapter, as touching the ſtoning of an Idolater: To the intent, that the Iſraelits may ſee & feare. To the thirdAuguſtine further argued, that after this life there is no other place of amendment & repentance: and that therefore there is a danger, leaſt if they that be guiltie ſhould after this manner be ſuffered to depart out of this life without repentance, they woulde fall into thoſe puniſhments which ſhall neuer hauehave ende. To this I anſwere, That repentance is not denied vntounto them which he condemned: For time & ſpace of repentance is giuen them: & there are appointed vntounto thē paſtors & Miniſters of ye word, to admoniſh them diligentlie of ſaluation, & to driue faith & repentance into their mindes. Notwithſtanding it ſéemeth that Auguſtine in this place attributed ouer much vntounto that publike repentance, as though the guiltie ſort, if they ſhould be put to death without it, might not hauehave ſaluation. But the matter is not in ſuch ſorte, and thoſe things which be there ſpoken, if they be ſomewhat narrowly conſidered cannot ſtand together. For ſéeing that repentance of that kinde is not often renewed, leaſt (as Auguſtine himſelfe confeſſeth) ſo notable a remedy ſhould through much frequenting become of no eſtimation, what ſhall we doe vntounto them, which after that repentance fall againe into the ſelfe ſame and more gréeuous crymes? ſhall we bid them to diſpaire? No verilie. If they beléeue ſincerelie, and that they are againe penitent, no doubt but they ſhall againe obtaine pardon of God. And if that the ſinnes committed after the ſame publike repentance may be forgiuen without it, why ſhall not thoſe ſinnes alſo be forgiuen without it which were doone in the former tyme? The grace of God is not tyed to thoſe rites and ceremonies which are aboliſhed in our age. In the ſtead of publike repentance they hauehave placed auricular confeſſion, which cannot be denyed but was the deſtruction of the weſt Church. Purgatorie ouerthrowen by a reaſon of Auguſtine.Further thoſe words of Auguſtine are to be noted, to wit, that after this life, there is no place of amendment or repentance. For ſo is Purgatory taken away, if that thoſe which depart from hence, are either exalted vntounto glorie or elſe doe fall into puniſhment that ſhall neuer hauehave end.
11 That doubtleſſe which was brought as concerning the imitation of God is of ſmall force, To the fourth.becauſe his counſels far differ from ours. He is exempted from all lawes, & gouerneth all things by his owne frée will as it pleaſeth him: Howbeit we liue vnderunder lawes, and muſt doe not thoſe things which are ſéene but which are preſcribed. God muſt be imitated of vsus, but yet ſo much as our condition and the lawes laide vponupon vsus will beare. To the proofe that he brought out of the Epiſtle to the Romanes: Rom. 2. 4.Becauſe God of his benignitie leadeth euill men vntounto repentance, it may alſo be ſaide, that Princes doe leade ſuch guiltie ones to repentance when as with ſingular benignitie and gentleneſſe, they make the way open for the Miniſters of the word of God to come vntounto them. To the fifth.God in verie déede commaunded vsus to louelove our enimies, Matt. 5. 44.howbeit that muſt be vnderſtoode, that we doe it ſo much as the lawes and the ſafetie of the common weale doe permit. Is it not alſo commaunded vsus that we ſhould account as Ethnickes and publicans, Matt. 1…. ver. 17.thoſe rebellious and obſtinate perſons, which will not heare the Church? And yet though we doe this we louelove them well ynough. In like manner it is lawfull for the Magiſtrate to ſlaie the guiltie, and therewith to kéepe charitie towardes them. It was ſaide alſo, To the A…t.that theſe eſcape not vnpuniſhed, ſéeing they puniſh themſelues in the Church by faſting, wéeping, praying, and by exerciſing them ſelues in good workes. Some puniſhment indéede they ſuſtaine, yet not ſo much as the lawes require, ſéeing it is not lawful for them to kill themſelues, when as neuertheleſſe by iuſtice they ought to be put to death. That Argument deriued from a poſſibilitie and eaſineſſe, becauſe Magiſtrates hauehave power of life and death ouer the guiltie, is not firme, for the powers which be ye gouernours of the world hauehave their ſword frō God to take vengeance of them yt be guiltie & to defend honeſt & good men, and not that they ſhould vſe ye ſame at their owne will and pleaſure. And it is certaine that they doe not their duetie, if they let goe ye guiltie vnpuniſhed, ſéeing they hauehave receaued authoritie to puniſh them. To the 8.He ſaid moreouer: ye alſo yt be Magiſtrates, hauehave néede of ye merciemercy of God, ſéeing (euen like other men) ye paſſe not ouer this life without ſinnes: wherefore yeelde ye vntounto others, that it may alſo be yéelded vntounto you. Neuertheleſſe it muſt be conſidered, yt euerie man ought to giuegive, not yt which belongeth to another, but that which is his owne. Howbeit, whatſoeuer paine and puniſhment is forgiuen to the offender, it is not giuen of the Magiſtrates goods, but it is giuen either of the partie harmed, or elſe of ye publike diſcipline and ſeueritie of the lawes. Which thinges, if they be not kept & remaine ſafe, there followeth an incredible confuſed order.
Iohn. 8. 11 To the 9.12 And as touching that which is brought of the adultreſſe, whom the Lorde Ieſus Chriſt abſolued, it ſerueth not vntounto this preſent queſtion, becauſe while Chriſt liued vponupon the earth, he had no Magiſtrates office, but was an interpretour of the will of his Father, and he miniſtred the worde of God vntounto the people. Wherefore it was not his part to condemne the adultereſſe to death, ſéeing he tooke not to him the ſword vponupon the earth. Alſo he could not proſecute the accuſation of her, ſéeing he tooke her not in the preſent crime, neither could he prooue the crime by witneſſes: but as a Miniſter of the word of God, he firſt gaue a warning of repentance vntounto the accuſers: after that, according to his office he warned the adultereſſe that ſhe ſhould ſinne no more. So that we may not gather hereby that the fact of Chriſt, either diminiſhed or hindered Magiſtrates from the lawfull puniſhing of them. Neither dooth the example of Ioſeph the huſband of the bleſſed virgin anie thing more belong vntounto this matter, Matt. 1. 19. To the 10.for he alſo was no Magiſtrate. But he would not bring Marie into obloquie, becauſe he was iuſt. Theſe wordes hauehave a dubble ſenſe. Tsedec for clemencie or merciemercy.Firſt Tſedec, ſometime among the Hebrewes is merciemercy, and therefore ſome thinke that Ioſeph ſpared Marie whom he ſuſpected of adultrie, becauſe he was of a mercifull and pitiful minde: wherefore he determined to put her away, omitting the accuſation of the fault. This interpretation if we followe, we cannot otherwiſe but condemne Ioſeph of too much tēderneſſe & ſlackneſſe, yt would not prouide to his power, for taking away ye euil of adulterie out of the Commonweale of Iſrael, according as ye lawe of God had cōmaunded. Or elſe we will ſay, that Ioſeph, ſéeing he was properlie & truely iuſt, would not defame ye adultrie of his wife, becauſe he was vncertaine of ye maner of the crime. For aſwel it might be, yt ye maid ſinned before they were betrothed as after. If ſhe had falne after they were betrothed, Deu. 22. 23. Ib. ver. 28.ſhe was held for an adultreſſe: but if before, ſhe might only be accuſed of whoredome. Which crime in very déede was no crime of death: yet he yt had doone the diſhonor to her, ſhould of neceſſitie marrie her: yet ſo notwithſtanding yt her parents had giuen their conſent. Wherefore ſéeing he was iuſt, he would not accuſe Marie of adulterie, becauſe he was not ſure that it was adulterie. And ſo to vnwinde himſelfe out of theſe perplexities, he determined to put away his wife. But yt this might not be, God forbad it by an Oracle. Brieflie, he was no magiſtrate. Further y• kinde of ye crime did not appeare. Howbeit they of whome we now intreate, be Magiſtrates, & they muſt giuegive iuſt puniſhmēt for a fault yt is knowen, & not for that which is vncertaine.
13 Moreouer Auguſtine willed that mans weakeneſſe ſhould be conſidered: To the 11.for if that be ſomewhat diligentlie weighed, he thinketh that aſwell the griefe of the accuſer as the rigor of the iudge ſhall be broken. Profitable and verie godlie is the admonition, becauſe it is euerie mans part to ſorrowe, that the nature of men ſo noblie inſtituted, is fallen headlong into ſo great an imbecillitie. Howbeit, we muſt not be led by this ſorrow (although it be iuſt,) either to diminiſh or to corrupt publike iuſtice. Beſides foorth, To the 12.it was inferred that good men ſay, they had rather defend than accuſe before the iudgement ſeate. I know this hath bin often boaſted of, but I affirme that both the dueties be neceſſarie vntounto the commonweale, and that ſometimes the one, and ſometimes the other is more to be deſired as may ſéeme moſt conuenient for the partie accuſed, for the time and for the place. For he that accuſeth helpeth the Magiſtrate, who cannot ſée all thinges by himſelfe. He alſo that defendeth the partie accuſed, helpeth the commonweale: he inſtructeth the Magiſtrate againſt the vehemencie of accuſers, or their ſlaunders or cauillations. Neuertheleſſe Cicero ſaid when he accuſed Verres, that he defended Sicilia. And ſo earneſtlie did he labour, that his accuſation ſhould be accounted for a defence. To the 13.And as for them which runne vntounto families, among whome they perceaue either trouble or diſcord to be raiſed, if they doe it with this minde, that by their comming they may prouide leaſt the good man of the houſe ſhould excéede meaſure, either in puniſhing his ſeruants or children, or in correcting his wife, they are to be prayſed: but if it be to the intent they may take away all kinde of chaſtiſement and diſcipline, they behaue not themſelues well. To the 14.Neither alſo did he well, which for a prieſt made interceſſion to the Eccleſiaſtical Synode, if perhappes he meant that an adulterer, a whormoonger or a drunkard ſhould be vnpuniſhed, and honeſt Canons of the Church to be neglected for his ſake. But if he onelie ſought, that he ſhould not be puniſhed ouer ſharplie or more than was méete, and that he ſhould be gentlie handled, ſo farre as Eccleſiaſticall diſcipline would ſuffer, he ſhall not be blamed. In déede Paul made intreatie vntounto Philemon for Oneſimus, Ver. 17.which had fled from him. But that ſeruant being now renewed in Chriſt returned of his owne accord vntounto his Maiſter. He was no captiue, neither was it a crime of death: Wherefore this example belongeth nothing to the cauſe which we hauehave in hand.
To the 15.14 There remaineth the laſt Argument, which as Auguſtine thought was of verie great weight: namelie that it would winne fauour and good will to the word of trueth, which is preached by the Miniſters of the Church. The reaſon in déed is plauſible: For the Church of Chriſt ſéemeth herein to be amiable and louing, in that it hath carefull paſtors, and ſuch as be verie deſirous of the ſaluation of Chriſtians, and would gladlie hauehave their offences, though they be grieuous to be forgiuen them. Thus doe ſome ſay, that Conſtantine was allured vntounto Chriſtianitie, becauſe our Byſhops had promiſed him pardon for a parricide committed, for he had cauſed his ſonne to be ſlaine. But whether this be true or no, I referre it to the Authors. That goodwill and fauor muſt be woonne vntounto the holy Goſpell, I my ſelfe alſo am of that minde, but yet not by ſuch a way, as the lawes and diſcipline, (which be the thinges whereon the commonweale dooth depend) ſhould be looſed. Grace vndoubtedlie is preached in the Church of Chriſt, as touching reconciliation with God, which is fréelie graunted vntounto beléeuers without woorkes: but yet not to this end that the guiltie ſort ſhould be plucked away from Magiſtrates. This did not Chriſt nor the Apoſtles at anie time: neither doe the holie ſcriptures either in the old or new Teſtament commaund anie ſuch thing: nor yet is it read that the holie fathers in olde time did ſet foorth anie ſuch example. Auguſtine was verie milde of nature, and whereas this thing was alreadie vſurped in his time in the Church, and eſpeciallie in the Church of Africa, he would not hauehave it abrogated. For which cauſe in that Epiſtle, he gaue place both to his owne nature and to the cauſe. And Iames when he ſaith, Iame. 2. 13.that Iudgement without merciemercy remaineth to him that hath not ſhewed merciemercy, A place of Magiſtrates expounded.ſpeaketh not of Magiſtrates, but he earneſtlie putteth other men in remembraunce to forgiue iniuries and offences: which can neuer ſufficientlie be vrged among Chriſtians. And Ezechiel when he ſaith: I will not the death of a ſinner, Eze. 18. 32.but rather that he conuert and liue, writeth it of God, who is frée from lawes. But earthlie Magiſtrats muſt iudge according to lawes. Yea and good princes for their owne part would not the death of ſinners, but their conuerſion, and wiſhe them life, and would beſtow it vppon them, but yet ſo farre as the lawes whereof they be Miniſters doe permit them.
15 Now there remaineth that I declare what I am to ſay as touching this controuerſie. What we are to decrée as touching this matter.Firſt let vsus make a diſtinction betwéen inferiour Magiſtrates and ſuperiour, from whom there lyes no appeale, and who hauehave abſolute dominion. The inferiours muſt in anie wiſe iudge according to thoſe things which are preſcribed vntounto them by ſuperiour Magiſtrates. But the chéefe Magiſtrates, who both may interprete the lawes where they be obſcure, and alſo hauehave committed to their iudgement thoſe things, touching which there hath béene no decrée: thrée things let them, that they cannot forgiue puniſhments. Firſt the accuſer, that is the partie harmed, and which complaineth at the tribunall ſeate. For the Magiſtrate is the kéeper of Iuſtice, wherefore hée is bounde by his office to giuegive euerie man his right: which vnleſſe he doe, he is no lawfull Prince. Secondlie the diſturbance of the common weale. Ariſtotle in the 5. booke of Ethicks the 5. Chapter ſaith, That if Citizens ſée that the iniuries doone vntounto them are not recompenſed by puniſhments, they thinke that they liue in ſeruitude, and that they be not now Citizens but bondſlaues. But admit that the accuſer be pacified, yea and that he intreateth for the releaſe of the puniſhment of him that is guiltie, and ſayeth that he is ſatiſfied, is it yet frée for the Prince to forgiue the puniſhment? No forſooth. Becauſe it is his part to defende the ſafetie of the commonweale: which continueth not, vnleſſe that heinous offences be repreſſed by puniſhments. While an euill man is puniſhed, others doe feare, but the impunitie of one or two maketh euill men the more bould. Wherefore if the Prince neglecting puniſhments ſlacke the ſeueritie of the lawes, now doth he not well vſe clemencie but he bringeth in publike calamitie. The third thing which hindereth him is the lawes aſwell of God as of nature: Further, the lawes of men which be honeſtlie and lawfullie made. Let him conſider with himſelfe, that people hauehave not choſen Princes, which ſhould beare rule after their owne pleaſure, but that they ſhould be the Miniſters of lawes. Yea ſometimes they take away the rule from them if they gouerne not according to the lawes. The Perſians had a certaine king called Cabades, that is glorious, who when he fauoured adulterers againſt ye preſcript rule of the lawes, and had made an vniuſt, lawe, namelie that adulterers ſhould not be puniſhed vnleſſe they had béene perpetrated by violence, the ſubiects tooke the matter in ſo ill part, as they caſt Cabades out of his kingdome. But it is commonly ſaide: that Princes ſhould be inclined vntounto mercy and clemencie: I graunt, but yet ſo farre foorth as the right of the partie offended, the publike commoditie, and preſcription of the lawes will permit. Moreouer this ſpecially taketh place in doubtfull things, and when lawes are to be interpreted, and when the crime is of that kinde, as a puniſhment is not appointed to it by the lawes. He muſt not ſue vntounto rulers, to let the guiltie paſſe vnpuniſhed.So then it is not well to deſire of chiefe rulers and Princes in iudgement, that wicked men ſhould be let goe vnpuniſhed. But and if thou wilt ſay, that they now repent themſelues, they will amend their life, and they be chaunged: I aunſwere, that the Iudge reſpecteth not what they be nowe, but what they were when they committed the wicked facts. Whereupon Ariſtotle diſtinguiſhing the kindes of cauſes: vntounto the kind Deliberatiue he aſſigned the time to come: for they which doe deliberate, take ſpeciall héede vntounto that which ſhall come to paſſe if this or that thing be doone. And vntounto the kind Demonſtratiue he aſcribed the time preſent. For thoſe things which be praiſed or diſpraiſed, are ſet before our eyes as though they be now doone and be preſent. VntoUnto the Iudiciall kinde he aſſigneth the time paſt: becauſe it is a Iudges part to inquire whether it be doone or no, and whether it bee well or ill doone.
Teſtimonies for iudging of the controuerſie.16 But leaſt I ſhoulde ſéeme without manifeſt teſtimonies to hauehave determined of the controuerſie, I will firſt alleage what GOD ſaide vntounto the Iſraelites before the lawe was giuen vntounto them. Gen. 9. 6.Hee that ſhall ſhed mans bloud (ſaieth he) his bloud ſhall be ſhed by man, becauſe he is made according to the Image and ſimilitude of God. In the lawe of Moſes, Leui. 19. 20the welſpring of puniſhments was that voyce of the Lorde: Take thou awaie the euill from the middeſt of thee. Of the Idolater he ſaid: Spare him not, take no pitie of him, neither keepe thou him ſecrete, the 13. of Deuteronomie. Of the wilfull murtherer: Let him die. Deut. 13. 5.For a ſlaughter by chaunce, Ex…d. 21. ver. 12. 13. & 14.there were aſſigned Cities of refuge: But he which had killed one of ſet purpoſe, he ſaid not, Let him goe, and giuegive him to my altar: but he ſaith: Plucke him awaie from my altar. The ſelfe ſame thing alſo is ſhewed out of the newe Teſtament. Wée hauehave in the Epiſtle to the Romanes, Rom. 13. 4.If thou doe euill, feare, for he beareth not the ſworde without cauſe, for he is Gods miniſter and reuenger. Then if God appointed him to be a reuenger, it is of neceſſitie that he ſhould puniſh wickedneſſe. The ſame thing we hauehave among the Ciuill lawes, whereof I might alleage many, but I will content my ſelfe with thrée, which are in the Digeſtes, in the Title De Poenis. The firſt is of Vlpian, which beginneth Si quis forte: where it is defined, that a guiltie man muſt bee puniſhed, although he ſhall ſay that he hath certaine ſecrete things belonging to the ſafetie of the Prince, which he woulde reueale vntounto him; neither muſt he be ſent vntounto him, becauſe theſe things be doone and fained for the delaie or ſhifting off of puniſhment. Nay rather (ſaieth he) ſuch wicked perſons ſhoulde ſuffer the more grieuouſly, becauſe they hid their ſecretes ſo long from the Prince: & becauſe euen yet they would not hauehave diſcloſed them, vnleſſe there had bin holde taken of them. And if the lawes ſuffer not that executions or puniſhments be differred or ſhifted off for the ſafetie of the prince, which is a great thing in the common weale, why ſhall they forgiue the guiltie, giuing them hope or promiſe of a better life? Another lawe is in the ſame Tytle, in the Lawe Reſpiciendum, and it is of Marcellus, wherein Preſidents are admoniſhed, that they ſhould weigh the matter it ſelfe and the cauſe: and that they ſhould not indeuour to get praiſe eyther for ſeueritie or for clemencie: let light faultes be lightly puniſhed, and grieuous faultes, ſeuerely: but yet with ſome moderation. The third lawe is in the ſame Title, in the Lawe Diui fratres, where it is decreed that the Preſidents ſhould not make the ſentences voyde which had bin giuen. Theſe things doe plentifully teſtifie that it is not the part of Iudges or Magiſtrates to yéelde vntounto interceſſors thoſe that be guiltie.