The Obligation of Human Conscience, Lecture 8
THE EIGHTH LECTURE Of the Obligation of Humane Laws from the Formal Cauſe: where,
Of
1 The Promulgation of Laws,
2 Of Laws Penal.
Ezra 10. 7, 8.
7. And they made proclamation throughout Judah and Jeruſalem, unto all the Children of the Captivity, that they ſhould gather themſelves together unto Jeruſalem.
8. And that whoſoever would not come within three days, according to the Counſel of the Princes, and the Elders, all his ſubſtance ſhould be forfeited.
OF the obligation of humane Lawes, as to their material and efficient Cauſes, we have ſpoke enough, and as much as conduceth to our preſent purpoſe, in thoſe points which have already been handled by us. In this place we are to ſpeak of ſuch as may be reduced to the Formal kind of Cauſes, and although peradventure not ſo properly, (if examined according to the acurate and exact Method) yet in my Judgment not altogether incongruous to our Diſcourſe on this preſent Subject. They may all of them be reduced to two Heads, The one of the publication of Lawes, and the other of the penalty adjoined to them to be inflicted on Delinquents. Both of which as they are expreſsly contained in the Text above cited, (The Publication of the Law in the ſeventh verſe, and the penalty of it in the eighth verſe) ſo the uſe of them is very neceſſary, both by the Nature of the Law it ſelf, and to obtain the Effect of the Law; For ſeeing the Law by its own Nature, and as it is a rule of things to be done, ought to have a double Power, viz. A Power of Directing, by ſhewing unto the Subjects what is to be done, and what is not to be done, and a Power of obliging, by ſuggeſting into their minds a neceſſity of obeying; The Law could not duely, and effectually exerciſe this twofold Power, unleſs the Subject were informed what is the will of the Prince, which is done by publication, and underſtood withall by the penalty annexed to it, how much it doth concern him to perform it.
II. Concerning the Publication of the Law; the firſt Doubt is, Whether this publication be meerly on the Account of, and as it were intrinſecal to the Law? That is to enquire, Whether, that as the Law hath the Power of directing and obliging, the promulgation of it be ſo neceſſary that it wanteth of that Power unleſs it be promulgated; Now in all this Diſcourſe you are to underſtand, that I take not this word Promulgation as it is uſed in Cicero & other Roman writers, but according to the received manner of ſpeaking amongſt the Schoolmen & the Canoniſts of the latter Ages; for in that Promulgation of the Antients, the Law not yet eſtabliſhed, or fully made, was propounded to the people publickly on three Market days of their approbation of it; But the Publication of which we now ſpeak, is the Promulgation of a Law already made, that the People may take notice of it. I therefore ſhall briefly anſwer to the Doubt propoſed, and ſay, That this Publication is ſo neceſſary and ſo intrinſecal to the Law, that in ſome manner it may be called the Form of it, and thereupon amongſt many Authors it is a part of the Definition of it; and indeed it is abſolutely neceſſary to this, that the Law may exerciſe the Office of a Law, which is to direct, and to oblige the Subjects, whom it cannot direct, much leſs oblige, although made by never ſo juſt, and undoubted Authority, unleſs it be known to them, and it cannot be known unleſs it be publiſhed; For that which properly induceth the obligation, is the Will and Authority of the Prince or Governor, not as a ſingle, but as a publick Perſon, and the Head of the Commonalty; But unleſs by ſome publick means he ſhall cauſe his Will to be propounded, and made known unto the People, it cannot by any Law be manifeſt (at leaſt according to the interpretation of the Law) that it is his Will, and proceedeth from his Authority as he ſuſtaineth a publick Perſon;Diſt. 4. Sect. In iſ…is. And from hence is that of the Canon Law, Leges conſtituuntur cùm promulgantur, Lawes are constituted when they are publiſhed, And that alſo of the Civil Law, Leges quae conſtringunt vitas hominum ab omnibus intelligidebent, The Laws which do bind the lives of men ought to be underſtood by all; which being approved by the Common Conſent of all Doctors, and the Dictates of Reaſon, we need not here, for the confirmation of i…, to inſtance the Example of God him ſelf ſolemnly pronouncing his Law unto the Iſraelites from the Mount of Sinai, or the Practice of the moſt flouriſhing Common-wealths and Cities in the whole world, who as ſoon as their Laws were made, did in the moſt publick places expoſe them to the obſervation of the people engraven in Tables of Braſs or Wood; the words are moſt known which every where we meet with amongſt antient Authors, and to this claſſis pertain the foreign, and the foreign, which ſignifie nothing elſe but the Tables in which the Athenians wrote their Laws. Of the ſame nature were the twelve Tables of the Romans, and others of other Nations, concerning which let thoſe men who have the leiſure to be curious of ſuch antiquities conſult with the Philologers, and the writers of Dictionaries of both languages; we muſt proceed to other things.
III. The neceſſity of the publication of Laws being thus granted and determined, there ariſeth a ſecond Doubt, What this promulgation of the Law ought to be, that it may paſs for lawfull, and inferre an obligation? In anſwer to which I ſay in the firſt place, that the manner, and the reaſon of publiſhing a Law, as to the particular Rites and Circumſtances, may be varyed according to the Cuſtoms of diverſe Nations; But all do agree in this, and by common uſe it is required, that the Law-giver take ca…e to have his will ſo propounded, and manifeſted to his Subjects by ſome external ſign, that it may publickly be known unto them all, ſo that none of thoſe who are bound to obſerve the Law maybe ignorant that the ſaid Law is extant, and this is therefore required, becauſe the power of directing is intrinſecal and eſſential to the Law, & Subjects cannot direct their actions according to the will of their Prince, unleſſe they know what his will is, & how can they know it unleſſe by proclamation, or by writing, or inſculpture, or ſome other outward ſign it be ſufficiently expoſed, and manifeſted to them?
IV. I ſay in the ſecond place, To the publication of a Law to oblige the Subjects, it is not only required that the Lawgiver doth publickly ſignifie his will unto them, but he is to proceed further, that is, to have it done in a ſolemn manner, or at leaſt that it be ſo done (which is even as much as a ſolemn Right) that it may be ſufficiently teſtified and made known unto his Subjects, that the Law-giver intended, that this will of his may have the power of a Law, and that it may oblige them; the reaſon is, becauſe, not every will of the Superiour, although known unto the Subject, doth preſently, and in ipſo facto oblige him, unleſs withall it be manifeſt, that the Superiour had an intention that it ſhould oblige him; For every Superiour endued with a Legiſlative power, and ſuſtaining a double perſon, the one private, as a ſingle man, the other publick, as a Lawful Superiour, doth come under a double conſideration. In the midſt of theſe late tumults, the unhappy caprichiouſneſs of ſome wits did put me to this new diſtinction, concerning the perſonal, and political Capacity of a King. The Diſtinction in my judgment is ſomething more proper to our preſent buſineſs, than to the Subject then in hand; It is this, the will of a Prince, (if a Prince: be conſidered as in his perſonal capacity) that is as he is a ſingle, and as it were a private perſon, carries not with him the reſpect of a Law, and obligeth not his Subjects to direct their Actions according to it; Therefore to oblige the Subjects, It is not enough for a Prince any way to ſignify unto them, that he will have this or that done, unleſſe upon ſome other account it be manifeſt, that it is his will to have it ſo done, as he is in his Political Capacity, that is, as he is a Prince, and the Head of the Commonalty, and as he ſuſtaineth a publick perſon with a Legiſlative Power, which ſeeing it cannot be made manifeſt enough by the bare ſignification of his Will, it is needful that by ſome more publick, and ſolemn Ceremony, it ſhould be atteſted unto thoſe whom it concerns to have the knowledge of it, leſt any man, for the excuſe of his Diſobedience, might pretend that rotten, and that vulgar one, I had not thought of it.
V. I ſay in the third place, In large Empires which contain many Provinces, it is requiſite that the publication of a new Law be made in every Province of the Empire. Some there are who think this to be ſimply neceſſary, and to be required from the nature of the Law, which doth not oblige, unleſſe it be received of the people; And therefore if be only publiſhed in a Princes Court, or in the Metropolis of the whole Kingdom, or ſome chief Cities thereof, the promulgation of it is no way ſufficient to oblige thoſe who do live in the more remote places, and provinces; But although this be not abſolutely neceſſarily (neither doth the nature of the Law ſeem to require it, and the common opinion of the Doctors, as well as the common practice of moſt Nations are of another Judgment, yet it is profitable that it ſhould be done, that ſo the Law, to which all men are bound, as much as may be, may come to the knowledge of all men; which by how much the more eaſily it may be done in our times, than in Ages heretofore, before the Art of printing was found out, by ſo much the more inexcuſable is the neglect; But to make no digreſſion, The manner of publiſhing our Laws which is received amongſt us, doth not only ſeem to be the moſt ſufficient, but the moſt eaſy and commodious of all others, viz. that the Laws ſigned and paſſed by the King, by the conſent of the Repreſentatives of the whole Kingdom in the Houſes of Parliament, the Parliament being diſſolved, be committed to the preſſe, and printed by the Kings Printer, and in a known Character, that no man may doubt, but that the ſaid Laws are lawfully made, and ſufficiently publiſhed.
VI. The third Doubt, It being ſuppoſed, that the Law is ſufficiently publiſhed; When doth i… begin to oblige the Subjects, preſently after the publication of it, or ſome time afterwards? I anſwer in the firſt place, that it is beyond all controverſie, that thoſe Laws, in which a certain time of obligation is defined, As ſoon as that time is arrived, the ſaid Laws begin preſently to oblige, and the obligation of them is perpetual, unleſs there be a time for the obligation of them, which in the ſame Laws is expreſſed, or they become to be abrogated by a new Law, or by a contrary cuſtome. And hence it is, that according to the common conſent of the Civil Lawyers, the Laws of the Emperour being newly made, do not oblige the Subjects of the ſaid Empire, unleſs after the ſpace of two months after the promulgation of them, becauſe that this time by ſome Authority in the Novels, as in all other of their Laws is to be obſerved, is univerſaly prefixed & defined, & for this intent, that it is preſumed, that in the ſpace of two months the knowledge of the ſaid Law may eaſily be brought unto all the Subjects. I ſay in the ſecond place, That in the Kingdoms, and Common-wealths, where nothing of any certainty is either defined by Law, or received by cuſtome, concerning the time in which Laws new made do begin to oblige, the ſaid Laws having no certain time of obligation affixed to them, do preſently as ſoon as ever they are publiſhed, according to the manner of the Country, oblige all thoſe Subjects to whoſe notice they are arrived, or where it was not in the fault of the Lawmaker, but that they might have come to the knowledge of them. For ſeeing the obligation of the Law dependeth on the will of the Law-giver, and not on the notice of the Subject, it followeth, that the obligation of the Law is of force, when the Law-giver hath ſufficiently expreſſed his will to his Subjects by ſome outward ſign, whether it were made known to all his Subjects, or whether it ſo fell out that ſome of them peradventure were ignorant of it; For grant but the Law, and the obligation is granted, which hath its dependency on the Law, as it is a Law, and neceſſarily followeth it, as every neceſſary Effect doth follow its proper Cauſe, as already we have often mentioned. Therefore there being nothing wanting to a Law that is required to the compleating of its eſſence, after that it is made, and ſufficiently publiſhed, it altogether followeth that a Law ſo made and publiſhed, ought preſently to inferre an obligation; neither is it any wayes inconvenient, that an obligation be made, and become ours by the will only & Act of another, we not knowing it, if the ſaid obligation doth carry with it the nature & conſtruction of a moral Debt, as the Schoolmen ſpeak it; Although from obligations and debts wch. ariſe from contracts, the caſe is otherwiſe.
VII. The fourth Doubt; How the Law doth reach unto thoſe, who though after a ſufficient publication of it, and the elapſe of the time prefixed by the Law, have not yet actually any knowledge of it? Which is to demand, whether he to whom the Law is not actually known, be ſo guilty of the fault, that he tranſgreſſeth, if he doth any thing againſt it, and thereupon deſerveth that puniſhment which that Law inflicteth on the tranſgreſſors of it? The reaſon of this Doubt is, on the one ſide, becauſe that obligation is vain, or rather none at all, which obligeth neither to the fault, nor to the puniſhment; And on the other ſide, both becauſe it is abſurd to be bound to that which is impoſſible; but to obſerve a Law which we know not, is certainly impoſſible; as alſo, becauſe from the two Offices of the Law above ſpecified, it is neceſſary that the power of directing, as firſt by Nature, muſt go before the other power of obliging, ſo that the Law cannot oblige any, but whom it directeth, and it cannot direct any, but thoſe to whom it is known. This being laid down in the firſt place, which admits of no ſcruple, viz. that the Subject to whom the Law is known, is obliged both to the fault, and to the puniſhment; As for thoſe that know not the Law, I anſwer to the propounded doubt, and ſay in the firſt place, that he who by his groſſe negligence is ignorant of the Law, when it proceeds from his own fault that he is ignorant of it, is no leſſe, or at leaſt not much leſſe guilty of the fault, and deſerveth puniſhment as well as he who doth know the Law, and doth it not. For the Ignorance of that thing which every man ought to know, and may know, doth excuſe no man; And in the interpretation of the Law, there is no great difference betwixt a wilful Ignorance, and a fault committed.
VIII. I ſay in the ſecond place, That he who is therefore ignorant of the Law, becauſe he was a little more careleſſe, or negligent, than in a buſineſſe of that moment he ought to be, although the fault be never ſo light, as the Civilians term it, yet becauſe it is manifeſt, it was done by a fault, and by his own Fault, he is not altogether free from the obligation of the Law. My Reaſon is, becauſe that Ignorance was vincible, as the Schoolmen ſpeak, that is, which could be overcome, for if the Subject had been ſo diligent as he ought to have been, and as the dignity of the cauſe required, and as wiſe men uſe to be in their imployments of greater weight, he could not be ignorant, it is preſumed, of the promulgation of the Law; Now his Ignorance of that Law, according to which every man is bound to direct his Actions being in him an ignorance that might have been helped, this Ignorance cannot be but culpable, and if culpable, in whatoever degree it be, it cannot but accordingly be inexcuſable. It may be argued; But by how much the lighter the fault is, the Ignorance in both Courts, is ſo much the more excuſable, and amongſt the equal Arbitrators of things, doth deſerve a more eaſy pardon. It is to be anſwered, that he was before obliged by the Law, although he was ignorant of it; And it is manifeſt by this, becauſe as ſoon as ever, by the Teſtimony of ſome man of Reputation, he underſtood that the Law was publiſhed, he immediately in his own Conſcience judged himſelf to be obliged by that Law, now there could ariſe no obligation from a new report, or by the Teſtimony of this man, neither is there any power of obligation either in himſelf, or in his Teſtimony, therfore without doubt he was obliged before by that Law, although he had neither notice of the Law, nor any Conſcience of the Obligation.
IX. I ſay in the third place; He who in earneſt and invincibly, either by accident or any other impediment, and by no neglect of his own, is ignorant of the promulgation of a Law, as if any man ſhould be viſited with madneſs, or labour under ſome long or grievous diſeaſe, or being newly returned from forein Countries, ſhould never hear of the publication of ſuch a Law, nor indeed could hear of it, he is not by that Law obliged either unto the fault, or any puniſhment of the fault ſo properly named; Nevertheleſs by the ſame Law which he is invincibly ignorant of, he may become ſo far lyable to a puniſhment improperly ſo called, that is to ſome loſſe to be ſuſtained. The firſt part of this poſition is thus proved; No man committeth a fault, or deſerveth puniſhment who doth not Sin; but he who keeps not a Law, of which he is invincibly ignorant, doth not Sin (for if he ſhould ſin, he were obliged to that which is impoſſible) therefore he cannot deſervedly be blamed, nor juſtly puniſhed; But that he may be obliged to ſome dammage to be ſuſtained by that Law (which is the other part of our aſſertion) ſhall appear to be moſt clear by this example. Suppoſe there be a Law prohibiting ſome certain kind of Traſſiquings and Contracts, by which Law, amongſt other things, it is decreed that all ſuch contracts, made one month after the promulgation of the ſaid Law, ſhall be altogether void, and of no effect; If any man after that month is run out, being in good earneſt, and invincibly ignorant of the promulgation of that Law, ſhall ſtrike ſuch a bargain, which is by the ſaid Law forbidden, he will be clear indeed from the fault, by reaſon of his invincible Ignorance which was impoſſible to be helped, and conſequently he ought to be free from the puniſhment, which juſtly is due to no man, but for the fault; nevertheleſſe he ſhall not only ſuſtain the Dammage, by reaſon of the nullity of the Contract, which he entred into, but he is bound alſo to ſuſtain it according to Conſcience; both by the force of obedience, which is due unto the Law; and by his reflection on the publick profit; The like is to be determined in many other Laws of the like nature; For examples ſake, In thoſe Laws by which perſons are diſabled, & by which privileges are revoked, In thoſe Laws by which Uſury is moderated, and in thoſe by which certain prices of things to be ſold are conſtituted, and in the like, of which the Canoniſts and the Divines do treat at large. Neither ought this ſeem to be unjuſt to any man; for although a Dammage be ſometimes called a Puniſhment, it is only analogically, and very improperly, for otherwiſe there is a great difference betwixt a Dammage, and a Penalty or puniſhment properly ſo called; If an innocent perſon be puniſhed, a great injury is done unto him; but often it comes to paſſe, that an innocent perſon may be dammaged, and yet no great injury done unto him. And thus much as conduceth to our preſent purpoſe, may ſuffize to be ſpoken of the promulgation of the Law.
X. In the next place we are to ſpeak of the penal Law, in which many things being omitted which unprofitably are accuſtomed to be diſputed by many of the Caſuiſts, and which pertain rather to the external and pleading Courts, as that of the Canoniſts and Papiſts, than to the internal Court of Conſcience, we ſhall be contented to give a view unto you of ſome few, and the moſt remarkable of them, and which moſt neerly we conceive do conduce to the Government of Conſcience: In this kind we meet firſt of all with this doubt; Whether the Conſtitution of the puniſhment doth any wayes pertain to the Eſſence of the Law. I anſwer; It ſeemeth that it doth, not as ſomething that is extrinſecally requiſite to compleat the Eſſence of it, ſo that the Law were not a Law, if the penalty were not annexed to it, but only conſequently, as ſomething neceſſary to this, that the Law may effectually obtain the end which it intended; For the Form and Eſſence of the Law conſiſteth in the Precept of it: I here underſtand Precept as it is largely taken to comprehend a prohibition with it, as in the Scriptures are the words foreign and foreign, and amongſt the Divines, as well Negative Commandments, as Affirmative, are commonly called Precepts; And from this Precept alone, both the powers do depend, which we have ſaid to be in the Law, viz. the power of directing the Action, and of obliging the Conſciences of the Subjects; For the Subject hath a ſufficient Rule, according to which he ought to direct his Actions, and to the obſervation whereof, unleſſe he will be wanting in his duty, he is bound in Conſcience, as ſoon as he underſtands that his lawful Superior hath commanded this or that by Law, whether there be any puniſhment annexed to that Law, or not; Therefore this neceſſity of annexing the puniſhment doth not ariſe from the Nature of the Law it ſelf, which conſiſteth in the meer Precept, but (that the Precept which of it ſelf would not barely ſuffice,Tatitè permittitur, quod ſ…ne ulti… ne prohibetur. Tert. 1. contra Marcion. 26. may with the greater vigour obtain its effect) from another double Hypotheſis, the one of the Subject, the other of the End; For it is expedient that the Laws ſhould be moſt religiouſly obſerved, which is the Hypotheſis in reſpect of the End, nevertheleſſe the inbred Depravity of mans heart being ſuppoſed (wch. is another Hypotheſis in reſpect of the Subject) it can very hardly or almoſt never come to paſſe, but that the moſt profitable Laws will be deſpiſed, either by the negligence, or the perverſeneſſe of moſt men, unleſſe by fear they are contained within their bounds,Qui ratione traduci ad meliora non poſſunt, ſolo metu continentur. Quintil. 12. Inſtit. who make but a mock of the Dictates of Conſcience. From this double Hypotheſis, it comes to paſſe that the wiſeſt Law-makers, have alwayes judged it neceſſary, and ſaving to the Common-wealth, to add more force to the obſervation of the Laws, by the fear of puniſhments, and that after the example of God himſelf, who pronounced not the firſt Law which he gave to man, without the threatning of a puniſhment, Gen. 3. Some good Citizens peradventure (whoſe number are but few) induced only by the Conſcience of their Duty, and their Love unto Virtue, and their Country, would render Obedience unto the Laws, although there were no puniſhment propounded, but the Turba, or the greateſt number, are inforced only by the fear of puniſhment to the performance of their Duties; It is manifeſt hereby, that the Conſtitution of puniſhments in the making of Laws, is neceſſary.
XI. The ſecond Doubt is, concerning the obligation of the penal Law, as to the extenſion of it, whether the penal Law doth oblige only unto the penalty, or whether it obligeth unto the fault alſo? Which is to demand, if a Subject may ſo ſatisfie the Law, and his Duty, if being prepared to undergoe, and by undergoing the penalty conſtituted by the Law, he may be no longer guilty of the Delinquency, although he obſerveth not the command of the Law; Or whether, for all that, he is not bound in Conſcience to the performance of that, which is by the is Law commanded. That more clearly and diſtinctly we may anſwer to this doubt, it being a Queſtion of great Moment, and of which in the Common Lives of Men, there is a moſt frequent uſe; It will not be amiſſe, the better to unfold it, to premiſe ſome things which are very profitable before hand to be known. We are to underſtand therfore in the firſt place, that that poſitive Humane Law, ought only to be called Penal, which by the will of the Legiſlator, doth expreſly determine ſome temporal puniſhment for the Tranſgreſſors of it; And in all duplicate page duplicate page this diſcourſe, as often as mention is made of puniſhment, you are to underſtand no other, but only a Temporal puniſhment. This word Temporal puniſhment is taken in a twofold Conſideration, either as 'tis oppoſed to the Spiritual, or as it is oppoſed to Eternal puniſhment, And for the moſt part in common diſcourſe they are taken as Members contradiſtinct to one another, ſometimes Spiritual oppoſed to Temporal, and ſometimes Eternal unto Temporal; there are therefore three kinds of puniſhments, or, if you will, you may call them, Species, or manners of puniſhments, or degrees of puniſhments; For whatſoever comes under the name of puniſhment; is firſt, Either a ſpiritual puniſhment, as the loſſe or the deprivation of Grace, & of the friendſhip of God, or of that inward joy, and conſolation, which ariſeth from the ſence of his Grace and Love. Or ſecondly, it is …n Eternal puniſhment, which conſiſteth partly in the Eternal Deprivation of the beatifical viſion of God and Chriſt, and partly, in the eternal Torments of Hell. Or thirdly, it is a temporal puniſhment, diſtinguiſhed from both the former, which pertaineth to the ſtate of this preſent life, and hath relation only to the body, and external things, neither doth it take away of it ſelf and neceſſarily either the ſence of the Grace of God, or the Hope of everlaſting life; Temporal puniſhments of this nature are the loſſe of money. Baniſhment, Impriſonment, or Fines ſet on the head of any one, courgings, and many of the like; and laſtly death it ſelf. Thoſe puniſhments which are the chiefeſt and of moſt frequent uſe may be reduced to theſe heads, Death, Baniſhment, Confication of goods, and Impriſonment.
XII. In the ſecond place we are to underſtand, that puniſhment as it is oppoſed to the fault, is taken again two wayes; For ſometimes it is taken largely, and materially, as it is oppoſed to it in a contrary oppoſition, that is, as it is another Species condividing the ſame Genus; And ſo every Evil that befalleth any man, which is not malum culpae, the Evil of the fault, is called a puniſhment, or malum Poene, the Evil of puniſhment, although it be not inflicted on him who indureth it for any fault going before, but caſually or by injury it may happen to him; ſo a ſuddain Diſeaſe, mony taken away by theft, a Wound given by a thief, goods loſt by fire, or Shipwrack, and all kind of Hurt or Dammage which is grievous to indure, is to be numbred amongſt things penal, and to come under the name of puniſhment; Sometimes the word puniſhment is taken more ſtrictly, and as it were formally, as it is oppoſed to the fault in a relating oppoſition, that is, as it is inflicted on a man for a preceding fault; As if a man ſhould be mulcted fourfold for the goods of another taken away by Theft, or ſhould be baniſhed for ſedition; And this is the proper, the former the improper ſignification of the word penalty or puniſhment for puniſhment is improperly ſo called, when no fault did go before it; From hence proceeded that moſt known Definition of puniſhment, that it is, Supplicum quo quis proper delictum afficitur; It is a puniſhment with which any man is inflicted for a fault. Secondly, in this preſent diſputation we intend to debare on both the ſignifications of the word, as the nature of the diſcourſe ſhall require; But the laſt is the chiefeſt, for it is called a penal Law, not ſo much in the reſpect of the Dāmage, or the Hurt wch. can come unto any man by occaſion of the Law (& that peradventure juſtly, …hough without any fault of his) as in reſpect of the puniſhment, wch. by the determination of the Law is appointed for thoſe who do trangreſs it.
XIII. In the third place we are to know, That in penal Laws, ſome are purely penal, and others mixed, A Law purely penal is, when in the ſimple ordination of it, it only appoints the puniſhment, and neither by commanding, or forbidding doth expreſſly enjoyn any thing. For examples ſake, ſuppoſe there be a Law which giveth power to the Inhabitants of any City or Town, to chooſe every year one of the moſt remarkable of the Citizens to be their Mayo…, or Bayliff, this clauſe being added to the find Law, The Citizen who is choſen, and ſhall refuſe the place, ſhall be fineà one hundred pounds, This Law is purely penal, becauſe it ordains a puniſhment for thoſe who ſhall refuſe to undertake that office, nevertheleſs it commandeth no man to undertake it, nor forbiddeth any man to refuſe it. A penal Law that is mixed, is, when it commandeth any thing to be done, or forbideth any thing, the penalty being added that is to be inflicted on the Tranſgreſſors. For Examples ſake, let us ſuppoſe a Law to be declared in this or the like Form, Let no man preſume to tranſport any of the Merchandize of this Nation into a forain Kingdom, or to ſell any forain Merchandize in any place of this Kingdom, unleſs be paeyeth the accuſtomed Tribute, he who ſhall … otherwiſe ſhall ſuffer the loſs of the Merchandize he vendeth. This is a penal Law, becauſe it hath a penalty annexed to it, nevertheleſs it is not purely penal, but mixed, for under that penalty it commandeth the Cuſtoms to be paid, and forbiddeth the exportation, or the ſelling of Wares, the Cuſtoms not payed. Some there are who think that there is a third kind of a penal Law to be added to theſe two, which containeth at once both the command and the puniſhment, but neither of them poſitively and ſpecially, but both of them disjunctively and indifferently; For examples ſalte, let there be a Law under this Form, Being choſen by the Commonalty of the City, either undergoe the Office of the Mayor, or chief Magiſtrate, or pay a hundred pound; There needs not for this cauſe that any new Species ſhould be added; For the Species of things are not to be multiplyed without neceſſity; And this disjunctive Form of propounding the Law, ought to be referred to that which is purely penal, for in it ſelf it containeth no abſolute command; if you allege; Of theſe two things, though neither of them is commanded definitely, yet both of them are commanded indefinitely; I eaſily may reply, to command indefinitely, and under a disjunction (to ſpeak properly) is no more to command, than to ſay that the picture of a man, i… a man; This disjunctive Law therefore (as I have ſaid) is purely penal, which is manifeſt by the compared Form of the examples. For if the Law-maker ſhall put forth the Edict in this manner, He who being elected ſhall refuſe the Mayoralty, ſhall pay one hundred pound, or in this manner, being elected, either be Mayor, or pay one hundred pounds, it is all one; There is, in both, the ſame ſence, the ſame force of the words, and one & the ſame ob…igation.
XIV. In the fourth place, we are to know, that between an obligation to the fault, and an obligation to the temporal puniſhment, there is no neceſſary Connexion, or certainly not ſo neeeſſary that it may be alſo reciprocal; There is a neceſſary Conſequence indeed from a Temporal puniſhment properly ſo called, to the fault; And this Argument therefore is of force, Peter is to be puniſhed by the Law, therefore Peter hath committ…d a fault; But from a temporal puniſhment, properly ſo called, ſuppoſe any dammage or the like, the fault is not neceſſarily inferred; For a man without any fault of at all his own may be obliged to a loſſe, as already we have ſaid. Neither is the Conſequence reciprocal from the fault to the temporal puniſhment; For it may ſo come to paſſe, that a man may be obliged to the fault, and yet not be obliged to the puniſhment, I mean a temporal puniſhment, for the account is far otherwiſe of the Spiritual and Eternal puniſhment. For examples ſake, ſuppoſe a man hath committed a fault, as he hath told a lye, or betrayed the ſecrets of his friend, or hath privately detracted from the good name of his Neighbour, for which the Laws of men do appoint no puniſhment, he therefore cannot be puniſhed by man with any temporal puniſhment, neither is it neceſſary that God ſhould temporally afflict him. But that no man may too boldly flatter himſelf, & aſſume unto himſelf hereby a greater liberty of ſinning, becauſe he thinks himſelf free from temporal puniſhment, he ought duly to call to mind, that he is nevertheleſs obliged to a far more grievous puniſhment, which is a Spiritual, and an Eternal puniſhment, Both which puniſhments are ſo neceſſarily, and ſo reciprocally conjoyned with every fault, that the puniſhment doth alwayes preſuppoſe a fault going before it (for God puniſheth no man that deſerves it not) and at the laſt the deſerved puniſhment muſt neceſſarily follow the fault, unleſs it be prevented by the mercy of God remitting the fau…t in Chriſt by Faith, and by Repentance.
XV. Theſe things thus premiſed, to anſwer to the propounded Doubt, I will inferre ſome Concluſions; And in the firſt place we muſt judge, How the penal Law doth oblige the Subject in Conſcience by the mind and Intention of the Law-maker, If it be manifeſt that there is any certainty of it that is, if it be certain that the Law-maker did intend to oblige the Subjects, not only to the penalty, but to the fault alſo, they are undoubtedly obliged to obſerve that which is commanded by the Law, and do not ſatisfie their Duty if they are prepared to undergo the Penalty ordained by the Law; But if it be manifeſt that he intended not to oblige them, but only to the Penalty, it is certain that the Subjects are not bound beyond that Penalty. The Reaſon is, becauſe the Foundation or Ground of the Obligation of the Law (as elſwhere is ſhewed) is the manifeſted will of the Law-maker inveſted with a Lawful power, Therefore where the Will of the Law-maker which is the adaequate Meaſure of that Obligation which the Law induceth, is manifeſt; we need not to make any further doubt concerning the extent of the Obligation.
XVI. Peradventure, you will demand, what aſſurance may ſuffice, that a Subject may be ſecure in his Conſcience, that ſufficiently he underſtands the mind, and intention of the Law-maker? I anſwer, that a mathemat calcertitude, which is manifeſt by Demonſtration, and impoſſible to be falſe, is in va…n to be expected in morals, by reaſon of the infinite variety of Circumſtances, and uncertainty of Humane affairs, nevertheleſs a certain logical certitude may oftentimes be had of the Intention of the Law-maker, which is to be collected from the words of the Law it ſelf, from which, his Intention may ſo perſpicuouſly appear, that there needeth not any further Evidence. The mind of the Legiſlator may be manifeſted, partly by the form and manner of the Precept he enjoyneth, and partly by the greatneſs of the Puniſhment that is to be inflicted, but eſpecially from the Preface of the Law it ſelf, in which that it may be more acceptable to the people, he uſeth to declare the cauſes and reaſons that do induce him to the making of that Law, as alſo how juſt it is, and neceſſary for the taking away of abuſes, and for the advantage of the Common-wealth; From all which being rightly weighed together by comparing of the circumſtances, it will be no great difficulty for a wiſe and apprehenſive man, ſo to learn the meaning and intention of the Lawgiver, and to have ſuch a ſufficient moral certitude thereof, (for in morals, a moral certitude is ſufficient) as to conclude, that undoubtedly he intended ſuch a thing in the making of it; But if the Subject be not of ſo great an apprehenſion and Judgment, as duly to examine all the importances of the reaſons, or if he be afraid (ſince every man is not a Competent Judge in his own Cauſe) left he might interpretate the mind of the Law-giver more favourably on his ſide than he ought to do, it would be his beſt courſe (if it be a buſineſs of ſo great Importance, that it will be very uncommodious or troubleſome to him to obſerve that which by Law is commanded) to addreſſe himſelf to ſome man of approved Piety and Prudence, and plainly, and ſincerely to declare his mind unto him, and to acquieſce in his opinion, and his judgment.
XVII. But becauſe it may be, and oftentimes it ſo comes to paſſe, that after all diligence there can be obtained but little certainty of the mind of the Law-maker from the Law it ſelf, or not ſo much as the Conſcience of a good man may ſafely acquieſce therein; We muſt ſeek further in ſo doubtfull a caſe, & examine what interpretation we are to follow in ſo doubtfull a caſe, whether that which is the more large & favourable, as many will have it, or as others, the ſtricter interpretation; Martin Navar a man of great authority amongſt the Canoniſts, is ſaid to be of an opinion, that he thought no penal Law did oblige to the fault, by it ſelf, but only to the penalty. Other Authors have been of another judgment, and have taught, that every penal Law, unleſs by the mind of the Law-maker it was manifeſt to the contrary, did oblige to the fault alſo. I muſt confeſs that the extremes of both opinions have been always ſuſpected by me, & it may ſo come to paſs, that as ſome have ſpoken too favourably, ſo others too ſeverely. That therefore in a thing So dubious we may have ſomething to follow which is certain, let this be the ſecond Concluſion, A Law purely penal, doth by it ſelf, and ordinarily, oblige only unto the penalty, and not unto the fault. I ſay in the firſt place a Law purely penal, whether it be categorically taken or disjunctively. I ſay in the ſecond place, by it ſelf, for by accident, and by the ſuppoſition of a former obligation, it may oblige to the fault alſo; for a penal Law is made to that end, that Subjects by fear of puniſhment be compelled duplicate page duplicate page to their Duties, to which they were bound before by a former Law, divine, natural, or humane, ſo thoſe penal Laws (he that killeth a man let him ſuffer the pains of Death; He that tranſporteth Merchandize beyond the Seas, let him either pay the Cuſtom, or loſe his Merchandize) do oblige to the fault, ſo that whoſoever ſhall undergo the puniſhment ſhall not clear his Conſcience thereby, unleſs he ſhall obey the precept of the Law, but they do not bind ſo, by themſelves and by their own virtue, but by the force of a precedent obligation that taketh its riſe from the command of a former Law. For the Subject was obliged before that Law (according to our ſuppoſition,) was made, both by the Law of God not to commit murder, and by the Law of his Country to pay cuſtomes, and taxes. I ſay in the third place, Ordinarily, becauſe it may be done extraordinarily, the preſent ſtate and condition of things ſo requiring, ſo that what otherwiſe was free, and might be omitted, may in an exigence fall out ſo neceſſary to be done, that he may offend, and fail in his office if he doth not do it, but ordinarily, theſe extraordinary caſes being excepted, he who is prepared to undergo the puniſhment impoſed by the Law, is no further bound by that Law, if the Law be purely penal.
XVIII. The reaſon of the whole Concluſion is, becauſe the maker of Lawes doth not oblige but by commanding, and therefore a ſimple ordination which commandeth nothing doth no more oblige of it ſelf, than the Counſel of a friend, or the exhortation of a grave man; For as he who giveth Counſel to another, or doth exhort him to do this or that, doth declare what it is that he deſireth him to do, but doth neither oblige him to it, nor intend to oblige him: ſo a Legiſlator in that Law in which he commandeth not any thing of the Subject, but only ſhews him what he would have him to act, under the Condition of a propoſed puniſhment, is to be preſumed not to have a will to oblige him further, but only to the penalty he propoſed; For if he had an Intention to oblige him to the fault alſo, it had been moſt eaſy for him by adding a command to ſignifie his intention ſo unto him. Therefore ſeeing that a ſimple and bare ordination doth not it ſelf oblige unto the fault, and the addition of a temporal penalty cannot of it ſelf oblige but only to the undergoing of the temporal penalty, it is manifeſt, that a Law purely penal, which containeth nothing in it ſelf beſides a bare ordination and temporal penalty annexed to it, neither of which is obligatory to the fault, cannot of it ſelf oblige unto the fault, but unto the puniſhment alſo. And the ſame is to be ſpoken of thoſe Laws which are called conventional, which example I the more willingly do uſe, becauſe it ſerveth not only to confirm, but excellently to illuſtrate our Concluſion To which alſo may be added the will of the Teſtator, and many other things, which as to the power of obligation are all of a like nature. The Inhabitants of ſome Town, who have not the power to make Laws, properly ſo called, do yet in the Court of the Lord of the Mannor (for ſo they term it) debate and agree amongſt themſelves concerning ſome things conducing to the keeping of peace and juſtice amongſt their Neighbours, and under the name of penalty, a pecu…iary mulct is impoſed on thoſe who ſhall violate the agreement, theſe conventions are called the Laws of the Inhabitants, and in our own language BY LAWES, for learned men and skilful in antiquity, do note that in the antient language of the Saxons, the monoſyllable BY, doth ſignifie a habitation; We with many others, for informations ſake, do call theſe Laws conventional Laws, for although they be contracts only, and conventions amongſt private perſons, and to ſpeak properly, not Laws, by reaſon of the defect of the publick Authority, yet they are commonly called Laws, by reaſon of the Analogy which they have with Laws properly ſo called, and as to thoſe two effects of the Laws, of directing and obliging; for as the Lawes do direct the Subjects, ſo thoſe Conventions do direct the Perſons confenting in the acting, and do oblige them to the performance of what they are to act, and certain it is, that in theſe Conventions the perſons contracting did not intend mutually to oblige themſelves to the Fault, but only to the Penalty; For Example ſake, The Inhabitants of ſome village do agree amongſt themſelves, that the Maſters of every Family in that village ſhall every year in the Month of May work in their own perſons three days for the repairing of the Highwayes, and they who ſhall not do ſo, (ſuppoſe here that every days work is valued at ten pence) ſhall have a mulct upon them to pay twenty pence; It is certain by this conventional Law, that the perſons who did contract it, did chiefly intend the yearly repairing of the High-ways, & moreover they wiled, that every Maſter of his Family ſhould labour in his own perſon for ſo profitable a work, otherwiſe they would not agree upon a mulct, that they who refuſed ſhould pay as much again as the days work came unto; And as certain it is on the otherſide, that they intended not mutually to oblige them ſelves any further than to the paying of the impoſed mulct, if any one of them either by the reaſon of other imployments could not, or upon any other pretences whatſoever, would not in his own perſon perform that work.Imperia mortuorum. Senec. 3. Contr. v. 9. Legatum est quod legis modo teſtamento relinquitur VLV. Inſtitu. Cap. So in Wills and Teſtaments (for Teſtaments are as a Law alſo, both to direct and to oblige the Executors and thoſe thar are to receive the Legacies.) Caius …lleth that his Wife Caia, while ſhe remaineth a Widdow, ſhall retain the houſes with the adjacent lands which he bought of Titius, but if ſhe marryeth he is to loſe them, It is manifeſt, that it is the Will of Ca…ias, that his wife ſhould remain a widdow, and ſhould not marry again, for in that Intention he annexed that Condition by the fear of the Dammage to deterre his wife from a ſecond Mariage, And by inſerting that Condition, he intended not, and indeed could not intend to oblige his wife to the Fault, as to have offended if ſhe ſhould have marryed another Husband.
XIX. But you will allege, Agreements do oblige, and Wills and Teſtaments do oblige to the fault, for he offendeth who ſtandeth not to the Agreement he hath made, And thoſe offend who do otherwiſe than by the will of the Dead is ordered; I anſwer, that the Caſe is far different to violate Contracts, Laws, or the Wills of the Dead, and to infringe the will of a Legiſlator, or a Teſtator made under a Condition; How great the difference is, the Examples which before we have produced will beſt of all inform us. He doth not preſently tranſgreſſe againſt that conventional Law of working for three days under a pecuniary Mulct, who refuſeth to work, unleſſe he refuſeth alſo to pay the Mulct; For he ſtands to what was agreed upon, if he performeth either, and that alſo according to the intention of thoſe who made the agreement, who intended indeed mutually to oblige themſelves to the performance of that work, but not ſimply & abſolutely, but under the condition above ſpecified; So in that Teſtamentary Law of Caia marrying another Husband, Caius being dead, ſhe offendeth not by marrying, although it be certain that the Teſtator had rather, and indeed willed (for he who had rather, willeth) that ſhe ſhould not marry, yet notwithſtanding ſhe ſhould undoubtedly offend if being now marryed unto another, ſhe ſhould ſtill retain the Lands and Houſes upon ſuch a condition bequeathed to her in the Will, and ſhould not reſtore them to the Heir. The reaſon of both the examples is the ſame, becauſe in both of them the obligation was not pure, ſimple, and abſolute, but only conditinal; For always a condition of its own nature, doth ſuſpend the obligation, ſo that the condition being kept, the obligation immediately, as if the Bonds were looſed, doth fall to the Ground. The Caſe is the very ſame in Laws that are purely penal, as to the manner, and meaſure of obliging, which they will eaſily underſtand who have the will and the leiſure to compare theſe conſiderations amongſt themſelves, ſo that we need not any longer to inſiſt in the explication of them.
XX. But peradventure ſome one may yet inſtance, that no man can be obliged to the Puniſhment, but he muſt be obliged to the Fault alſo, for a Penalty cannot juſtly be impoſed on any, unleſs for ſome antecedent Fault, according to that of St. Auguſtin, Omnis poena ſi juſta eſt, peccati poena eſt; Every puniſhment, if it be juſt, is the puniſhment of ſome ſin. The ſecond objection is derived from the Nature of the Law, they urge, which is to command ſomething, therfore that Law which we have ſaid is purely penal, hath not the Nature of a Law if it commands nothing, or if implicitly at leaſt it containeth ſome Command, it muſt alſo oblige unto the Fault, for a fault is nothing elſe but a Tranſgreſſion or a Violation of a juſt Command.
XXI. To the firſt objection we may anſwer ſeveral ways, For in the firſt place it may truly be ſaid, that indeed eternal Puniſhment as it is under the abſolute Notion of Puniſhment, and cannot otherwiſe be conſidered but in the true Nature of Puniſhment, muſt therfore neceſſarily ſuppoſe ſome antecedent fault which hath deſerved it, and for which without any other reſpect whatſoever, he who is guilty of that Fault, is afflicted with the Puniſhment, but there is not the ſame conſideration in all ſpiritual Puniſhments, much more in temporal Puniſhments; For although both of them as it is a Puniſhment, doth ſuppoſe ſome precedent fault worthy of ſuch a Puniſhment, for otherwiſe it would not be juſt, yet becauſe they may be otherwiſe conſidered, than under the bare notion of a puniſhment, viz. In reſpect to the End …ntended by the party puniſhing (that is, not ſo much as ordinated to revenge a fault paſt, as to prevent a fault to come) it comes thereupon to paſſe, that neither God himſelf when he afflicts a man either with a ſpiritual or a temporal puniſhment, neither man when he inflicts upon a man a temporal puniſhment, doth always preciſely reſpect their Sins or offences, but very often they do propound other ends unto themſelves. To this purpoſe belongeth that anſwer of our Saviour, when his Diſciples asked him concerning the blind man, whether it were for his Sins, or his Fathers that he was born blind? Joh. 9. 3. His anſwer was, that neither his Sins, nor his Fathers were the occaſion of his blindneſſe, but that the works of God might be manifeſted in him; The reaſon is, becauſe in morals, the Eſtimation of things, and the Denomination of them, is taken rather from the final, than from the efficient, and meritorious Cauſe.
XXII. Secondly, it may be ſaid, that the relation of a temporal puniſhment to a Sin, doth properly conſiſt only in that puniſhment which relatively is oppoſed to the Sin, and not in that puniſhment which only contrarily is oppoſed to it, which is the looſer and more improper ſignification of the word. We have heretofore made uſe of this diſtinction, and explained it in the ſecond Praecogniſance to this Doubt, therefore there needs no repetition of it; It may ſuffice to put you in mind, that the puniſhment affixed to the Law that is purely penal, is not called a puniſhment, ſtrictly, and properly, but improperly, and more largely, as it ſignifies another kind of Evil, diverſe from the Evil of the Fault, which kind of puniſhment may be infflicted on a perſon without any legal injuſtice, and for a profitable end, as to avoid ſome publick Inconvenience, without the delinquency of the perſon ſuffering, for the word puniſhment ſo taken doth contain all loſſes, m…fortunes, or adverſities, or whatſoever befalls a man which he deſireth might never have to come to paſs.
XXIII. If theſe things ſhall not ſatisfie the Reader, yet this will be very remarkable which here in the third place I ſhall propound unto you, and which will quite remove all this Doubt, and very aptly meet with another objection, which is, that the Intent of a penal Law (of which we now ſpeak) being to oblige the Subject, and yet but conditionally to oblige him, may be conſidered two or three ways; Firſt, preciſely, as to that to which it intendeth to oblige under ſuch a condition to be done. Secondly, as preciſely to the condition it ſelf, by which it intendeth to oblige, the one whereof containeth the ordination of the Law, and the other the puniſhment annexed to it. Thirdly, as to the whole aggregate, that is the whole Law it ſelf, which at once conſiſteth of the complexion of them both. This diſtinction being laid down, I ſay in the firſt place, that that part of the Law which containeth only the condition or the puniſhment doth not of it ſelf oblige unto the fault, for a bare condition is of no prevalence, as all do grant, and it is manifeſt of it ſelf; He doth not therefore tranſgreſs, nay rather he very well performs his office, who avoids the penalty of the Law, provided he performeth that which the Law ordaineth. Secondly, I affirm, that that part of the Law which contains the ordination, doth not of it ſelf oblige unto the fault, for no Law obligeth beyond the intention of the Law-giver, & certain it is that the Legiſlator by that part of the Law did not intend, per ſe or by it ſelf, to oblige the Subject to the fault, for then it had intended to have obliged him ſimply, …r that part, taken preciſely and by it ſelf, doth contain no condition in it; but by the condition of the Law added in the other part, it is manifeſt that he did not intend ſimply to oblige to the doing of that which the Law ordaineth, but under a condition in that Law expreſſed. I ſay thirdly, that a penal Law taken wholy and joyntly doth oblige to the Fault, in this ſenſe, that he is guilty of the Fault, and ſinneth againſt the Law, who when he ought to obſerve both parts, performeth neither; For as amongſt Logicians, the truth of a diſjunctive propoſition depends upon the truth of ſome one part of it, ſo that it is all of it true, if either of the parts of it be true, and not falſe unleſs both parts of it be falſe; So in morals, he obſerveth a diſjunctive Law (and every Law purely penal is diſjunctive, or formally, or equivalently,) who performeth one of the two parts propounded, and he doth not violate the Law, unleſs he doth neglect them both.
XXIV. This which was to be ſpoken of the obligation of a Law purely penal, being as I conceive ſufficiently unfolded, let us now paſſe to the conſideration of a penal Law mixed; Concerning which I make this my third concluſion; A penal Law mixed (to wit, which openly commandeth ſomething to be obſerved, and that it more diligently may be performed which is commanded, doth appoint a penalty to the tranſgreſſors) doth oblige both to the fault, and to the puniſhment, inſomuch that he neither ſatisfies the Law, nor his Conſcience, who undergoes the puniſhment, unleſs he doth perform that alſo which is commanded by the Law. There is none can doubt that ſuch a Law doth oblige to the puniſhment, for otherwiſe of what uſe would the puniſhment be that is added to it; And it is manifeſt that it obligeth to the fault, becauſe it containeth a manifeſt command; And every command obligeth to the fault. For a Fault, or a Sin, is nothing elſe but the tranſgreſſion of ſome precept, 1 Joh. 3. Neither can that be probably ſpoken, which is ſaid to be the opinion of Navarr, that the Law-maker by inſerting the puniſhment, doth ſignify, that he hath no intention of obliging, but only to that puniſhment which is annexed. Obſerve I pray you, how perverſe it is, ſo to interpret the appointing of a puniſhment, which it is certain is for that end annexed to the precept, that the ſaid precept by the fear of puniſhment, might more diligently, and more accurately be obſerved, as to make weak, and take-away the obligation of the ſaid precept. Numberleſſe are the Laws which throughout the world are made againſt Thieves, Murderers, perjured Perſons, and other wicked and nefarious people; God alſo gave a Law to our firſt Parents, by which he forbad them to eat of the fruit of the Tree which was in the midſt of Paradiſe, having annexed to the prohibition, the puniſhment of death, if they ſhould eat thereof; Gen. 2. Can any man be found ſo d…ſtitute of reaſon as to think that Adam was obliged by this Divine Law, and that others are obliged by Humane Laws, to the puniſhment only, and not unto the fault? Who will affirm (to omit humane Laws) that Adam was not obliged in Conſcience by that Divine Law to abſtain from the forbidden fruit, but to this only, that if he did eat thereof, he ſhould be ready to undergoe the ſetence of death? The opinion therefore of Navarre being exploded as dangerous, and by all men confuted, (if indeed the opinion was his, which I ſhall hardly believe, he being a man of ſo reverend a fame) we are to affirm, that a penal Law mixed, being both penal, and preceptive, doth oblige both to the puniſhment, and to the Fault, to the puniſhment as it is penal, and to the Fault as it is preceptive.
XXV. The third Doubt remaineth; How, and how far the tranſgreſſor of a penal Law is bound to undergoe the puniſhment in the fact it ſelf that is appointed by the Law? I muſt make haſte, I will therefore be as ſhort as I can; I ſay therefore in the firſt place, if the puniſhment appointed by the Law be ſuch that it impoſeth not any thing upon the tranſgreſſor to be either done or ſuffered by him, but conſiſteth rather in an inability to do ſomething which was commodious for him to do, or in an incapacity of receiving ſomthing which would be profitable for him, he is guilty of the Law ſo violated, and is bound ipſo facto to undergo the puniſhment. There are many Laws which do forbid tranſgreſſors, to do this or that, as the Civil Laws for certain cauſes do forbid tranſlationem Dominii, the alteration of power or free-holds; There are alſo many Laws which for ſuch a certain time, do make Delinquents incapable of ſuch a place, or dignity; As if a Diſturber of the peace, by a ſtatute of the Univerſity, be prohibited to have his Grace propounded in the Congregation Houſe for the ſpace of two years after the fault committed; In ſuch & the like caſes, where the puniſhment conſiſteth only in the Inability, or the In…pacity, becauſe to undergoe this puniſhment there is no Cooperation required of the perſon to be puniſhed, but rather a certain Ceſſation of operating, He who hath violated the Law, is obliged willingly to ſuffer the puniſhment, although he be not required; I ſay in the ſecond place, if the puniſhment appointed by the Law be ſuch, that a cooperation of the perſon offending be neceſſarily required to the Execution of the Law, that is, that he who is to be puniſhed is to act ſomething himſelf in his own puniſhment, he is not obliged ordinarily to undergoe the ſaid puniſhment ipſo facto, before the Judge hath pronounced the ſentence, or which is the ſame, before the puniſhment be exacted of him, by a perſon to that purpoſe inveſted with lawful Authority; The guilty perſon is bound indeed to ſuffer the puniſhment, but if he called to it, otherwiſe he is not bound. I ſay in the third place, that a guilty man, after the ſentence pronounced by the Judge, or after he is required to it by a perſon inveſted with lawful Authority, is obliged to a willing undergoing of the puniſhment, yea, and with ſome Cooperation of his own, if this Cooperation be not againſt the Laws of humanity, though otherwiſe very grievous, and extremely painful. For examples ſake, If an offendor be commanded to pay a great ſum of money, under the name of penalty, or to depart the Kingdome, he is bound by the power of the Law to the performance of it: but if the puniſhment impoſed be not only grievous, but ſomething alſo that is inhumane, as if a malefactor be commanded to ſcourge himſelf, to cut off his own hand, to drinke poyſon, or the like, in theſe caſes the guilty perſon is obliged to undergoe the puniſhment paſſively, but he is not obliged actively to cooperate in it, wch. he knows to be ordained by the Law, and which by his default he hath deſerved; And let this ſuffice to be ſpoken of the neceſſity of the Promulgation of Laws, and of the Obligation of thoſe penal Laws which may ſeem to have any reference with the Formal Cauſe of Laws.