A Complete Body of Divinity, Sermons · 182 (Question 64 cont.)
SERMON CLXXXII.
(II.) THEY ought to take care for the Execution of Good Laws, according to Equity. This alſo is incumbent on the Civil Magiſtracy, although the Duty doth n…t…ly … …ll reſpects on all in Authority, but on every … the S…tion which he …rs in the Civil Government. We before obſerved, that for the maintenance of good Order in the Body P…ck, there is a Legiſlative, and an Executive Power belonging to the Magiſtracy, both whereof are neceſſary, nor can they be well ſeparated without unavoidable miſchief. To Govern without Laws, brings an Arbitrary Government, which is unreaſonable; and opens the way to Tyranny, by expoſing the Eſtate, Liberty and Life of the Subject, to the Will of the Rulers, who are ſinful Men, and liable to Prejudices; and no Man is ſafe, or knows when of how to keep himſelf clear from Civil Cenſures: And the end of Laws which is to maintain Equity and Juſtice, cannot poſſibly be advanced except due Care be taken that ſuch Good Laws be duly put into Execution. Laws that are made or uſed, only as Scarecrows, will ſoon be deſpiſed; and the Law-maker… themſelves be quickly contemned, and the… Authority diſregarded. A Law is properly an Inſtrument of Government, and all the Good it doth is by being applied to the End of it, which is to encourage Vertue and ſuppreſs Vice; which is attained by letting Men know, that it is made in earneſt; elſe the Sword is born wholly in vain. It is therefore to be obſerved, that as there are Perſons to whom it belongs to make Laws, ſo there are ſuch as are be truſted with the diſpenſation of them, who are in Scripture-Language called Judges: And tho' the ſame Perſons may be employed in both, (the Prudence whereof will admit of a diſpute,) yet they do it not under the ſame conſideration. There is a Power of appointing Judges or Juſtices; and there is a Power veſted in the Perſons ſo appointed, who are nextly to Execute the Laws, by vertue of the Authority thus conveyed to them; and there is ſomething incumbent upon each of theſe, to render the Government juſt and equal: And theſe may be conſidered ſeverally.
[1.] IT belongs as a Duty on Lawgivers, to take utmoſt Care, that Juſt Laws may have a due Execution. We formerly obſerved, that it is incumbent on them to ſee that their Laws be Righteous and Good; elſe if the Law be Unjuſt and Oppreſſive, they will be guilty of all the Injury that is done by the Execution of it, becauſe they Command i…; but they have an Inſpection over the Application alſo. And here are principally theſe Duties,
(1.) TO appoint Perſons fitly qualified for this Post. All Men are not capable of ſuſtaining ſuch a Charge, nor will Birth or Wealth nextly furniſh them; but there are peculiar Gifts & Vertues neceſſary to be found in ſuch as have ſo great a Truſt put upon them. Jethro's Advice which he gave to Moſes is very comprehenſive of this Duty, Exod. 18 21. Thou ſhalt provide out of all the people, able men, ſuch as …ear God, men of truth, hating covetouſneſs. The wiſeſt of Men may be deceived in the Character of others; however ſuch are to be ſought for; they muſt be able men, Heb. Men … …ight, which is not always applied to bodily Strength, which is no neceſſary Qualification … a Judge: but often to Strength of Mind and comprehends under at both Reſolution and Courage, and Ability to ſearch into a Cauſe, and Skill in the Laws; that ſo they may put a difference between Right and Wrong. They must be ſuch as Fear God, which will influence them to Righteouſneſs, as knowing they muſt give an Account to God; and having a Principle in them, which will not ſuffer them to do any Injuſtice, but make them impartial. They must be Men of Truth, i. e. of Fidelity, for ſo the Word is frequently uſed; which will make them ſearch out matters to the bottom, and Judge according as the Cauſe is, …aving aſide reſpect of Perſons. And they muſt hate Covetouſneſs, which will make them ſcorn to take Bribes, to blind their Judgments.
… bear a due Teſtimony against ſuch as carry themſelves unworthily in their Truſt. This alſo belongs to the Superiour Power in a Government: Men may upon Trial be found to be inſufficient to bear their Place, and manage themſelves very unworthily in it; they may oppreſs the Innocent, and let Criminals eſcape, and not hear the Pleas of the Widows and Fatherleſs, certainly ſuch, upon due Information, ought at leaſt to be diſcountenanced, and not be ſuffered to have any more advantage ſo to do, but be wholly diſabled. We find what David reſolved to do in his Kingdom, Pſal. 101.3, &c. and 75.10. Theſe ought to let all ſuch …w, that if they Tranſgreſs their Charge, they ſhall find no Protection from them.
[2.] THE Duties of Judges themſelves, which they are to follow in all their Adminiſtrations, are diverſe; the chief whereof are ſuch as theſe;
1. THEY ought in general, to have a due regard in Juſtice and Equity. The Law is, or ought to be a Rule of Righteouſneſs; this therefore 'tis his Duty to lay in the Foundation of all his Adminiſtrations, and firmly reſolve to take all his meaſures according to it; and that he will take heed, that he do no unjuſt thing; ſo did he, Pſal. 75 2. When I ſhall receive the congregation, I will judge uprightly. The diſtinction indeed between Juſtice and Equity is very nice, tho' I know Lawyers make a very great …ne; and for that reaſon are Courts of Equity erected, to abate the Rigour of Law Juſtice, in Caſes wherein Perſons elſe would ſuffer wrong. But in a Moral ſenſe, all Laws are to be calculated by the Rules of right Reaſon; and if ſo, they are both Juſt and Equal: And tho' Men through the miſapprehenſion of the reaſon of things, may be in an Error in the application; yet Judges ought to interpret them in every thing that is dubious, by this general Rule; for they are to do Juſtice and Judgment. AS to that Queſtion, Whether a Judge is …nd to Execute a Law, which he is convinced to be in it ſelf Unrighteous? It would take up too much time to diſcuſs it diſtinctly; all that I ſay is, They are to Judge for God primarily; and He loves Righteouſneſs, and hate I…ity; and we are told concerning ſuch, Prov. 17 15. He that juſtifieth the wicked, and he that condemneth the just, even they … are ab…mina… to the Lord. And they that think ſuch a Man hath two Conſciences, a Publick and a Private, will find it a grand Cheat one Day, when they ſhall ſtand before the great Tribunal. But there is great Prudence neceſſary to be uſed in ſuch a Caſe.
2. THEY ought to have a peculiar regard to the Laws of the Government, to which they ſerve. Tho' the Law of God is the Rule of his Conſcience, which he ought by no means to tranſgreſs; and that Law extends, and ſets bounds to all his Actions, in every Relation he bears among Men; yet the Law of the Government is that to which he is to refer all his Juridical Actions, and they are to be bounded by it, and that on a double Account. He is to execute all the wholſome Laws of it, according as there is occaſion for it offered to him; and this he is to do becauſe the Oath of God is upon him, which is a Solemn tye lying upon his Conſcience, than which there can be no ſtronger Obligation among Men; as alſo, becauſe he is a Miniſter of God, as well as of Men, appointed for this very end, Rom. 13.4. God therefore and Men expect it of him; and the Civil Tranquillity hath no little dependance upon it. He is alſo to be limited by the Law in all the Executions of his Office. Conſider him as a Judge, and he hath no Authority to make Laws for his Direction, for they are already made to his hand, and he is bound to them. It is an unexceptionable Rule, that where there is no Law, there is no Tranſgreſſion, and conſequently no Puniſhment due: And tho' if a Man tranſgreſs the Law of God, a Judge may and ought as a Chriſtian to rebuke him for it; yet if there be no Law of Man, he cannot inflict any Civil Puniſhment upon him; nor will it be his default, but the blame of Lawmakers, if he go unpuniſhed, in caſe the Treſpaſs be ſuch, as requires that it be born witneſs againſt by the Civil Powers; which, when it is ſo, was formerly taken notice of.
3. TO ſearch to the bottom of the Cauſe that comes under his Cognizance. He ought to avoid all raſh Judgment, and not to determine a Caſe before he hath heard it: We are therefore adviſed, Prov. 18 13. He that anſwereth a matter before he heareth it, it is folly and ſhame unto him. And 25.2. It is the glory of God to conceal a thing: but the honour of kings is to ſearch out a matter. There are many Cauſes, that come before Civil Judges, which are intricate and perplexed; and the matters themſelves lye much out of ſight, and the right determination of them is a matter of great weight, wherein Men's Eſtates, or Reputation, or Lives are concerned; ſuch things as theſe are not to be ſlightly paſſed over, but canvaſſed throughly. This therefore was one thing wherein Job vindicated his Integrity in this regard, Job. 29.16. There are a great many Tricks, and Covers and fair Pleas that Men will make in their own Cauſe, to blind the Cauſe, and put a falſe Face upon it; and it requires great Skill, and a diligent Application of it, to ſet it in its true light, to prevent and detect all Fraud & wrong Judgment; and if he is not critically Cautious in this he may eaſily paſs an Unrighteous Sentence, which he will have cauſe to repent of, when it may be too late to remedy, and bring upon himſelf a Guilt which is not eaſily wiped off.
4. HE ought to have a ſpecial regard to right the Poor and Helpleſs, againſt their Rich and Potent Oppreſſors. The Mean and Deſpiſed, who have none elſe to ſtand up for them, and right them, are expoſed to wrongs and injuries, and every one will be ready to cruſh and tread them under the foot of Inſolence: Theſe therefore have no other, under God, to make their Caſe known to, but ſuch as have the Authority of righting them, put into their hands. God hath therefore in his Word, given ſpecial Charge to ſuch, to take Care of theſe; hence that in. Pſal. 82.3, 4. Defend the poor and fatherleſs: do juſtice to the afflicted and needy. Deliver the poor and needy: rid them out of the hand of the wicked. Hence that Warning given to ſuch, Prov. 24.11, 12. If thou forbear to deliver them that are drawn unto death, and theſe that are ready to be ſlain: If thou ſayeſt, Behold, we knew it not: doth not he that pondereth the heart conſ…der it? and he that keepeth thy ſoul, doth not he know it? and ſhall not he render to every man according to his works? And this is the commendation given of Solomon's Reign, who was therein a Type of Chriſt, Pſal. 72.12, 13, 14. For he ſhall deliver the needy when he crieth: the poor alſo, and him that hath no helper. He ſhall ſpare the poor and needy, and ſhall ſave the ſouls of the needy. He ſhall redeem their ſoul from deceit and violence: and precious ſhall their bl…d be in his ſight.
5. HE is to allow a fair Hearing to all Parties, whoſe Cauſe comes before him. There are Two ſorts of Cauſes which belong to the Cognizance and Determination of Civil Judicature, viz. Matters Criminal or Capital; and Matters of Controverſy between Man & Man: In either of theſe it is his Duty to ſuffer the Party accuſed to Plead for himſelf, and bring whatſoever he can in his own Defence, and have an Ear open to him, as well as the Accuſer or Plantiff; and not to Judge before he hath heard what both ſides have to alledge for themſelves. (Acts 25.16.) He ought therefore to ſhew no manner of Partiality during the Trial, much leſs to become an Attorney for the one againſt the other. A…di alteram partem, was a ſaying frequently in the Mouth of a Pagan Judge. And another could ſay, I have Two Ears, when I ſit to hear any Cauſe. In matters between the Prince and the Subject, he ought to let the Subject have as full a Hearing and with as much Candour as him who pleads on the Princes behalf; and in Matters between Man & Man he is to give the Poor as free Audience as the Rich, the Mean as the Noble Man. Nor ought the Plantiffs fair and plauſible colouring of the matter. Preoccupy or Prejudice his Judgment, much leſs Determine it; but he muſt maintain as free and open a Spirit to receive what the other hath to bring in his own Vindication. It is a Vulgar Speech and True, One Man's Cauſe is God, … another be heard. And it agrees with that of the Wiſe Man, Prov. 18.17. He tear … own cauſe, ſeemeth …uſt; but his neighbour cometh and ſearcheth him. He ought not therefore to be frightned with hard Words and Menacing, but entertained with greateſt Candour: … did Joſhua accoſt A…han, when he ſat in Judgment upon him; as, Joh. 7.19.
6. HE. ought to proceed in Judgment, …o… dum Allegata & Probata, i. e. according to the Nature of the Things alledged and the Evidence which is produced, for the making of it a Legal Truth. And there are two things which do belong to this Head.
(1.) THE matter of Fact muſt be l…galy proved. It is not enough that the Perſon be accuſed, and Matters never ſo unjuſt alledged againſt him; but there muſt be Evidence brought in againſt him, which ſhall according to Righteouſneſs make it to appear that it is …, a plain and undeniable Truth. If it were … to Accuſe, who ſhould be Innocent? But in due Proof, it ſtands a Truth in Law, nor will the denial of the other Perſon invalidate it; for … be enough to Deny, who ſhould be Guilty? Now the ordinary way to Evidence things of … in Civil Courts, is, by Humane Teſtimony, tho' Artificial Arguments are of uſe; and … God hath required, that in one Caſe, there muſt be at leaſt Two Witneſſes, for the Conviction of a Perſon, or making a Thing legally True. AS to that Caſe, Whether One Witneſs will not ſuffice in ſome Caſes? I Anſwer in a word, That all Caſes are alike as to Evidence, … God hath wiſely provided, that becauſe One Man's Credit is, of it ſelf, as good as another's in this point, there ſhould be Two Witneſſes, and therefore that Law was Moral which required this; i. e. When there is nothing elſe to prove the matter & this muſt be to an Individual Fact. AS to the Caſe, How far the Man's … Confeſſion will Convict him? It may be replied. That the Word of God allows it in ſome Caſes; but then the Perſon muſt be clear, full and … in it; not evidently under the power of … cholly: And the Civil Law alſo well provides both that no Confeſſions ſhall be extorted, and that the Matter of Fact Confeſſed ſhall be … torious. Hence it is wholly unlawful to put any to the Rack, to draw out a Confeſſion from them; becauſe it is a fearfull Puniſhment, … an horrible Injury to an Innocent Perſon; and ſuch is the Perſon in the Queſtion, till legally Convicted, in the account of the Law.
(2.) THE Relation which the matter of Fact bears to the Law, muſt be duly ſtated. And here alſo, no ſmall Caution is requiſite: A matter of Fact may be proved, the Man may be legally convinced that the thing is ſo; but then it is another Queſtion, What reference it hath to the Law; whether he hath Tranſgreſſed, and ſo made himſelf liable to the Sanction; whether he hath Injured his Neighbour, and ſo ought to make him a Reparation? It was proved againſt …, that he had ſu… …red David, when he fled from Saul, but … that he had therein tranſgreſſed any Law, inaſmuch as Saul had never declared David to be an Enemy, and a Rebel againſt the Government.
7. HE is to diſallow all unneceſſary delays of Judgment. It is true, over precipitancy is on the other hand to be avoided; ſuitable Time is to be allowed for Men to provide for the Juſtifying of their Cauſe; but ſtill it is a great Duty, that matters be not needleſly deferred, and this both in matters Criminal, and in Suits at Law: There may be matters of Suſ… and Preſumption alledged againſt an Innocent Perſon, which may unavoidably bring him into Trouble; tho' Care is to be uſed as far as may be to prevent it: However to ſuffer impriſonment, or be under Security, is a ſuffering, and therefore it ought not to be any longer than need requires; but the matter … as can be, brought to an iſſue, that if he be Innocent, he may be reſtored to his Liberty and good Name; if Guilty, he may ſuffer according to his demerit. And in matters of Suit, it is the Duty of Judges to being matters to as Expedite an Iſſue as can be, and not to conſent to every trifling pretence of Non Suits, &c. and ſo to keep things in ſuſpence, till the righteous Perſon ſuffer … loſs and expence than his gained Cauſe and repair, and it ſtands him in more to re… …is juſt due, than the thing it ſelf is …. It was Exemplary in that Roman Judge, Acts 25.17. Therefore when they were … …her, without any delay on the morrow I … on the judgment ſeat, and I commanded the … be brought …orth.
8. HE ought to pronounce the Sentence i… …lly, without reſpect of Perſons. It was a … Precept given to Judges, in Lev. 19.15. I… ſhall do us unrighteouſneſs in judgment; … not reſpect the perſon of the poor, nor … the perſon of the mighty: but in righteouſneſs ſhall thou judge thy neighbour. And …. 1.16, 17. Hear the cauſes between your …en, and judge righteouſly between every … and his brother, and the ſtranger that is with …. Ye ſhall not reſpect perſons in judgment, … you ſhall hear the …all as well as the great; … ſhall not be afraid of the face of man, for the judgment is God's. Acception of Perſons is … ſinful, when Men are to be tried in Law, and the Judge inſtead of keeping exactly to … true meaning of the Law, is byaſſed by the conſideration of ſomething in the Perſon himſelf, ſo as to neglect or pervert the Law for the ſake of that Conſideration; and here it is univerſally forbidden: It is neither to be regarded for the Poor or for the Rich. Sometimes a Man may be tempted to Succour an unrighteous Cauſe, either from Conſanguinity, or Friendſhip, or …ear of the Perſon, leaſt he ſhould do him ſome injury in Revenge, or becauſe of ſome Gift, or Bribe offered in ſecret; and ſometimes, tho' this is more rare, to fa…our a Poor Man in Pity and Compaſſion to him, ſuppoſing him like to be ruined, in caſe the Law be proſecuted upon him; both of theſe are contrary to the Juſtice required of ſuch. There is indeed no unlawful Acception of Perſons, in things meerly Gratuitous; a Man may beſtow his Favour at his diſcretion; but in matters of Juſtice, it is a thing abhorred of God, and of all good Men.
9. HE is to provide that the Sentence may be duly Executed. The End of the Law will not otherwiſe be obtained, but indeed excluded. There are indeed ſubordinate Officers employed for this; but it is incumbent on the Judge to take an effectual courſe that it be done, or ſuch as are truſted with it, be duely born witneſs againſt, on their neglect thereof, Prov. 28.17.
BUT here it may be enquired, Whether Civil Authority may not grant a Pardon to an Offender, if they ſee meet to extend ſuch a Favour to him?
TO this I reply, That no Judge as ſuch, is impowred to give a Pardon to a Criminal, his Province being to adminiſter Juſtice, according to Law; and there is no diſpenſatory Power belonging to him in that Poſt. It is alſo a great Truth, that there are ſome Crimes which God hath definitely required of Men, that they ſhall not ſhow the leaſt Pity to the Perſon convicted of them, as in the caſe of Murder, fore-mentioned, Gen. 6.9. And it is farther to be obſerved, that the end of Laws is to put away Guilt from a People, whereby elſe God would be provoked to bring his Judgments upon them; and to be a Terror to others, that by the Execution of them, they may learn to fear and avoid ſuch things; both of which will be in a great meaſure loſt, by the eaſy forgiving of ſuch Perſons.
NEVERTHELESS, There are ſome Caſes ſo circumſtanced, that extream Right would be extream Wrong, and the Severity of the Civil Law would appear to be Cruelty: And when it is ſo, it's doubtleſs, that God hath lodged in the ſupream Power of a People, a Prerogative, either to mitigate the Severity of the Sentence, or to take it off by a free Pardon: And this more eſpecially, when the Law it ſelf which is tranſgreſſed, is ſuch as nothing elſe makes it a Crime, but only the Civil Authority and Sanction; and the thing it ſelf would elſe have been Lawful; though where this Power is lodged, is according to the Conſtitution of the Government.
USE. THIS alſo gives us reaſon to Bleſs God, when He beſtows ſuch Judges upon us. And calls upon us to Pray to God, That He would inſpire, or aſſiſt all ſuch, that they may acquit themſelves ſo, that Juſtice and Judgment may go down our ſtreets as a ſtream; and then will God, even our own God bleſs us.
[DECEMBER 14. 1703.]