Explication of the Judicial Laws of Moses, Part 1 · Chapter 17 – Chapter 18
CHAPTER XVII. Whether a Iudge is bound to giuegive ſentence according to things prooved and alledged, or according to his owne private knowledge?
EXOD 23 1. Thou ſhalt not receiue a report; put not thine hand with the wicked to be an unrighteous witneſſe.
SVndry doe hold, that a Iudge muſt not judge contraryThe opinion of ſome concerning the proceeding of a Iudge ſecundū allegata & probata. to that which he knoweth, whatſoever is alledged or proved to the contrary; for whatſoever is not of faith is ſinne, Rom. 14. 23. that is, if a man doe a thing againſt his conſcience, it is ſinne; Wherefore, if a Iudge know a man to be innocent, and yet evidences be brought in againſt him that he is guiltie; then they hold that the Iudge ſhould uſe all meanes to free the innocent man; as firſt, he ſhould deale with the accuſer not to proceed in his accuſation, and ſhould ſignifie unto him, that he knoweth well the innocency of the partie. Secondly, if this cannot helpe, then he is bound publickly to teſtifie upon the Bench, the innocency of the partie, and he may deferre the giving out of ſentence, unleſſe he be charged by a ſuperiour; but if the matter hauehave no ſucceſſe that way, then he may remit him to a ſuperiour Iudge, or will the partie accuſed to appeale to a ſuperiour Iudge; but if he cannot prevaile any of theſe wayes, ſome doe will him rather to quite his place, than to giuegive out ſuch a ſentence againſt the innocent.
Although the light of nature it ſelfe, and the word of God both teach us, that the life of the innocent is to be maintained; yet when another law of greater force commeth in, then this muſt giuegive place; for reaſon itWhy a Iudge muſt proceed according to things proved. ſelfe teacheth us, that a Iudge is to proceed according to things proved, otherwiſe juſtice could not be preſerved, and the good of the whole, is to be preferred before the good of a private man.
But it may be ſaid, this is both againſt the law of nature, Object. and againſt the law written, to kill an innocent man.
To kill an innocent man accidentally, and beſides his Anſw. intention, when he is exerciſed in his lawfull calling,How a Iudge ſinneth in giving out ſentence againſt an innocent perſon. this is not a ſinne to him; but if he ſhould of purpoſe kill an innocent man, that incked were a ſinne contrary to the law; and even as in juſt warre, when the victory cannot be had otherwiſe unleſſe there be innocent men killed, as well as the guiltie, yet they may be ſafely killed, becauſe the warre is juſt warre, and ſecondly, becauſe it is not their intention directly to kill the innocent, but becauſe otherwiſe the victory could not be obtained: So a Iudge is bound to proceed according to that which is proved, and if he kill the innocent man, it is beſide his intention; for his intention is here to doe juſtice, and not to kill the innocent, and he is bound to preferre the univerſall good, before the particular.
But if he doe ſo, ſhall he not be guiltie, as Pilate was Object. in condemning Chriſt?
Pilate was an unjuſt Iudge, becauſe he pronounced Anſw. falſe ſentence againſt Chriſt who was innocent, and thisHow Pilate ſinned in giving ſentence againſt Chriſt. might hauehave beene knowne Iuridicè, becauſe they were not foreign, their teſtimonies agreed not, as the Evangeliſt Marke ſaith, Chap. 14. 59.
If a woman were proved to be the wife of Titius, Object. whom Titius in his conſcience knoweth not to be his wife; although the Iudge ſhould command Titius to doe the dutie of an husband to her, yet Titius ſhould rather ſuffer any puniſhment, than to performe that dutie to her, becauſe he knoweth her not to be his wife. So &c. Anſw.
Here we muſt diſtinguiſh betwixt that which is intrinſecè malum, evill in the owne nature of it, and that which is but accidentally evill; to commit whoredome is ſimply evill, but when the Iudge condemneth the innocent man whom he knoweth to be innocent, he doth not giuegive out ſentence againſt the man, becauſe he is innocent, (for that were ſimply ſinne) but becauſe he is bound to execute judgement; and here the Iudge proceedeth as a publick perſon; but Titius is a private perſon onelyonly, and therefore he is bound to doe according to his knowledge.
If a Iudge ſhould heare two men diſputing, and one Object. of them ſhould hold a tenent which were hereticall, and he ſhould conclude for him that is hereticall, yet I am not bound to follow his ſentence.
A Iudge when he condemneth a man according to Anſw. the law, he maketh not a lie, as when he ſaith, ſuch aA Jud…e when he gi…th out ſentence upon … perſon, he … not al…. propoſition is true, when it is falſe; and in matters … vine, he is not a Iudge as he is in the civill Court.
But if a Iudge ſhould be urged in his conſcience, poſed, is this an innocent man or not? Object. if he ſhould anſwere and ſay, he is nor, then he ſhould anſwere contrary to his knowledge.
As a Iudge, he muſt anſwere that he is not innocent; Anſw. here he muſt judge according to things proved, and theThe ſentence of the Iudge is the ſentence of publick authoritie. ſentence of a Iudge is the ſentence of publick authoritie, and when he judgeth ſo, he doth not againſt his conſcience; and here we muſt diſtinguiſh betwixt his ſpeculatiueScientia ſpeculativa. Scientia practica. and practick knowledge; although he be innocent according to private and ſpeculatiue knowledge, yet he is guiltie according to the courſe of the Law and publick authoritie.
He that is innocent ſhould not be condemned; this Object. man is innocent; therefore he ſhould not be condemned.
This man is innocent in judicio ſpeculativo, Anſw. but not injudicio practico; A man innocent inſpeculatiue judgement and yet guiltie in practicall judgement.but turne it this way, he that is guiltie injudicio practico ſhould die, but this man is guiltie in judicio practico; therefore he ſhould die.
If a man ſhould produce an Inſtrument privately to a Iudge, a Iudge could not proceed upon this, becauſe he ſaw ſuch a thing, if it were not publickly produced in Iudgement; this knowledge which he hath by the ſight of this Inſtrument privately, he had it not as a Iudge, but as a private man. So &c.
Whether is the Executioner bound to execute the Queſt. man, whom he knoweth to be unjuſtly condemned?
He is not the Interpreter of the Law; for that is the Anſw. part of the Iudge, but he is onelyonly to execute the ſentenceWhether the Executioner be bound to execute one that is condemned being innocent. pronounced by the Iudge: but if he ſhould know the ſentence to be falſe which is given out upon the innocent man, then he ſhould abſolutely refuſe and ſay, It is better to obey God than man, Act. 4. 19. He is bound to obey his ſuperiour in a good cauſe, and in a doubtfull cauſe; but not in that which he knoweth altogether to be falſe.
But what if a Iudge doubt in his conſcience, in ſuch a Queſt. caſe what is he to doe?
Here he is not to giuegive out ſentence, for that which is Anſw. not of faith is ſinne, Rom. 14. 23. That is, whatſoever he doth againſt his conſcience.
The concluſion of this is, ſeeing the ſentence of Concluſion. judgement dependeth upon the witneſſes, there is great fidelitie required in them, that the Iudge may proceed orderly in judgement, and that he make not a falſe ſentence proceed as it were out of the mouth of God.
CHAPTER XVIII. An partus ſequitur ventrem?
GEN. 21. 10. Caſt out the handmaid and her ſonne: for the ſonne of the bond-woman ſhall not be heire with my ſonne Iſaac.
GOD who is the God of order, and not of confuſion, hath debarred the children from ſundry priviledges for their fathers ſinnes.
Firſt, if both the Parents were Heathen, the Lord ſecludedThe children of Heathen Parents were not admitted to the Covenant, untill they became Proſelytes. the children from the Covenant, and they were not circumciſed, untill they became Proſelytes, & they were not circumciſed nomine Parentum, in the name of their fathers, but when they imbraced the faith & were converted.
Secondly, If both the Parents were Iewes, and did not beget their children in wedlocke, then the children were ſecluded from the inheritance, Iudg. 11. 2. Thou ſhalt not inherite with us, becauſe thou art the ſonne of a ſtrange woman.
Thirdly, If an Iſraelite had married a bond-woman, then the children were ſecluded from the inheritance, although their fathers were free; thoſe who were borne of Handmaids were alwayes reputed ſervants; and God applyed this to Chriſt himſelfe as he was man, Eſay 49. 5. I hauehave called my ſervant from the wombe; ſo Eſay 42. 1. Behold my ſervant whom I uphold, my Elect in whom my ſoule is well pleaſed. Marie called her ſelfe the Lords Chriſt as man was a ſervant.handmaide. Luk. 1. 28. therefore Chriſt as man borne of Marie the hand-maide, was a ſervant.
But yee will ſay, that things take their denomination Object. from the beſt part; as Water and Wine mixed together, is called Wine; ſo Chaffe & Wheat mingled together, yet it is called Wheat; Why then ſhould not the childe be reckoned to be free, after his father, and not reckoned bond, after his mother, who is a bond-woman?
In Phyſicall mixtures it is ſo, but it is not ſo in marriage; Anſw. this is rather like that which is ſpoken in theIn Phyſicall mixtures, things take their denomination from the better part. Schooles, Concluſio ſequitur deteriorem partem, if any of the premiſſes be particular, ſo is the concluſion.
The Doctors of the Iewes propound this caſe, if a Heatheniſh captiue woman were taken in the Warres, ſhe is converted and becommeth a Proſelyte; whether ſhould her childe be judged to be a free man or not in Iſrael? And they anſwere, that this childe borne of this ſtranger, is not to be counted a free man, Verum Senatus ſuo decreto Luſtrari eum tantum curat, they cauſe onelyonly toH. Melahh. 8. 9. waſh him, but they will not circumciſe him, untill he be able to make confeſſion of his faith, and become a Proſelyte; and here they ſay, Partus ſequitur ventrem, if the mother had beene a free woman, either before, or after the birth amongſt the Romans, the childe was reputed to be free; but not ſo amongſt the people of the Iewes. Wherefore the Iudges in Iſraell willed all true Iſraelites, not to match themſelues unequally in degrees, for the diſgrace which it brought upon their children, making them uncapable of freedome, and unfit to be heires.
The concluſion of this is: Concluſion. Here we may ſee the excellencyDifference betwixt the Iudiciall Law and the Covenant of grace. of the Covenant of grace aboue the Iudiciall Law; for if any of the Parents be faithfull, then the childe is holy, 1 Cor. 7. 14. that is, he may be admitted to the Covenant.