A Complete Body of Divinity, Sermons · 207 (Question 77 cont.)
SERMON CCVII.
II. IN the Paſſing of the Sentence after Trial. The Trial was to make way for this, and therefore this muſt be the upſhot of it; and that is either Abſolution or Condemnation.
AND here,
1. THEY ought to be ſatisfied in the Righteouſneſs of the Law, according to which they paſs the Sentence. I know there are hot Diſputes in this Caſe; and many think, that Judges are not concerned to enquire whether the Law be juſt or no; it being the Province of the Law maker to enquire after that, and if the Laws be Unjuſt, they muſt anſwer for that; and that if the Judge were alſo concerned in the Making of the Law, he ought to have withſtood that which his Conſcience told him is Unj…ſt; but it being his work as Judge, to execute the Eſtabliſhed Laws, he hath nothing to do to Queſtion the Juſtice of them, but is bound by his Oath, and conſequently his Conſcience, to execute them according to the mind and meaning of them. But I think there is juſt Exception againſt this Aſſertion, tho' Canteouſly to be guarded. Here then, it is to be granted, that a private Perſon ought not to make open Diſturbance againſt the Laws of the Place, and the Law-maker for Injuſtice; but rather to Suffer, than to diſquiet the Publick Peace: Nor is every private Perſon a ſufficient Arbiter, to Judge of the Equity of every Law that is Enacted. There are ſome Laws which are General, and are but the Ratification of the Laws of Nature, with Civil Sanctions; and in theſe there is a double Conſideration, viz. The Juſtice of the Law it ſelf, and the Equitableneſs of the Quality of the Sanctions. There are other Laws which are purely Poſitive, and are Vulgarly called Prudential, and that either as to the Laws themſelves, when the thing it ſelf is Indifferent, but made neceſſary by Circumſtances, and for the Publick Benefit; or in regard of the Sanctions, when nothing is determined by the Word of God, but is in the Diſcretion of the Law-givers, who are to conſult the Good of the Subject. But we are to obſerve, that every Perſon, who ſits in Judgment upon others, is to be active in paſſing the Sentence, and by Conſcience bound to Fear God and keep His Commands. He is therefore bound by God's Command, who is the ſupream Law-giver, to …o Juſtice to all, which he cannot do, unleſs he do that which is Right; and God hath ſeverely threatned, Prov. 17.15. He that juſtifieth the wicked, and be that cond…mn…th the juſt, even they both are abomination to the Lord. Now God's Law is the Rule of Juſtice, and that which is direc…ly contrary to that, muſt needs be Injuſtice; and no Law of Man can make that Juſt, which He hath immutalby determined to be Unjuſt: And He hath ſaid, Pſal. 94.20. Shall the throne of iniquity …ove fellowſhip with thee, which fram…th miſchief by a …? He therefore that condemns a Man for doing his Duty, and he would have ſinned againſt God if he had not done it, doth Injuſtice, and ſ… himſelf againſt the Truth: The Jews pretended they had a Law, Joh. 19.7. We …ve a l…, and by our Law he ought to die. And yet ſee, Acts 2.23. Him ye have taken, and by wicked hands have crucified and ſlain. And it is a vain Plea which ſome pretend, that a Judge hath a Publick and a Private Conſcience, and that by One he may Condemn a Perſon becauſe he is Sworn, and yet by the Other Acquit him, as knowing the Law to be Unjuſt: Nor will this be a Plea another Day, when he muſt Account to God how he diſcharged his Truſt; nor can an Oath to Man bind, when in performing of it, the Perſon breaks his Allegiance to Heaven; and tho' Men may Applaud him, yet God will Condemn him. In ſuch a Caſe therefore, a Man is bound, rather to lay off his Office, than wrong his Conſcience: Tho' as to Prudentials a Man may Judge, tho' he may think that the Sanctions ſeem too hard, if the thing it ſelf be allowable for the common Good.
2. THEY ought alſo to be ſatisfied, that the Perſon is Righteouſly Convicted. And here obſerve, that there is a Righteouſneſs in the Courts of Civil Juſtice, and in the Court of a Man's own Conſcience.
AND here a CASE is ſtated, viz.
Queſt. WHETHER a Judge may always Pronounce a Sentence, Secundum allegata et probata, provided the Law it ſelf be a Juſt Law?
Anſw. THAT it ought to be thus ordinarily, is as I ſuppoſe indiſputable; but that it ſhould always be ſo, will admit of a Debate. It is certain, that a Judge is Sworn to go according to Law; and this beyond queſtion includes this Negative, that he hath not Liberty to determine any Caſe contrary to Law, tho' he ſhould have never ſo great a Moral certainty of the Truth of the thing; becauſe nothing is to be counted True in Civil Judicature, but that which is Legally ſo, which muſt therefore be ſufficiently Proved: And becauſe He is under the Law, as well as the Perſon upon Trial, he can do nothing warrantably, but what the Law empowers him to. Nor will it be ſufficient for him to Condemn a Perſon, becauſe he thinks him really Guilty, unleſs he is Proved ſo; nor yet to Acquit him thatis Legally proved Guilty, becauſe he hath a Charity for him, that he is either Falſely accuſed Deſignedly, or upon a Miſtake; altho' theſe ſurmizes may and ought to put him upon the more curious & inquiſite Inquiſition, to find out the Truth of the Caſe, leſt there ſhould be an Error that might with Care have been prevented. But, tho' this be ſufficient reaſon for him to paſs a Sentence of Condemnation, becauſe his Oath obligeth him to it; yet in caſe he is Certain that either the Law is Unjuſt; or if it were never ſo Righteous, that the Perſon is Innocent, and that if he condemn him, he ſhall aſſuredly condemn an Innocent Perſon, the Caſe with him is altered; tho' he cannot acquit him, becauſe the Law allows it not, yet he ought to excuſe himſelf from doing the thing, becauſe herein he ſhould wrong his own Conſcience; and this comes under that fore cited, Prov. 17.15.
(II.) IN reſpect of Jurors. Theſe are nextly concerned in matters of Judicature, to ſearch out the Truth of Things, and give in their Judgment upon it; the Truth therefore is the buſineſs which is incumbent on them to uſe utmoſt endeavours to trace, and diſcover, which if they do not, they Tranſgreſs directly againſt this Precept. Now in the uſual courſe of Law, there are Two ſorts of theſe, viz. Jurors of Inquiſition, uſually called Grand Jurors, and Jurors of Trials; We may conſider them apart:
(1) GRAND Jurors, or ſuch as are to make Enquiry into a Caſe, in order to the Preparing of it for Trial; and their buſineſs is, either to bring it Forward, or to put a ſtop to it; and there is Truth & Fidelity required in them, in order to the right procedure of Juſtice; and their Truſt in this regard is very great, and of great Conſequence: and there are theſe Four Duties peculiarly incumbent on them. 1. THEY ought to be exceeding Tender of Expoſing Perſons. Every Man's Name, Eſtate, Limbs, Life ought to be precious to them: So that they ought not to expoſe them wihtout juſt reaſon for it. They are to judge of a Report, & ought not to Confirm it upon flighty grounds, Pſal. 15.3. He that backbiteth not with his tongue, nor doeth evil to his neighbour, nor taketh up a reproach againſt his neighbour An eaſy Credit, will hazard an Unjuſt Calumny. It is a thing too much pleaded that ſuch a Jury need not be Car…as, becauſe the perſon will be brought upon an after Trial, which will determine the Caſe; but this is a great Fault. If theſe bring a Perſon to the Bar, it ſaith that there is a juſt Suſpicion, and let the Caſe go as it will afterwards, yet it Fixeth this Blot upon the Perſon, that he was Once judged by wiſe Men to be juſtly ſuſpected of ſuch a Crime, and this will abide to his Scandal. 2. THEY ſhould enquire into the Accuſation that is given in. Men are many times clamorouſly Accuſed, when the thing it ſelf upon deliberation, will be found no Tranſgreſſion of the Law; and if ſo, it gives no ground of Indicting of the perſon: It is Nonſenſe to deny Grand Jurors a right of comparing the Thing alledged with the Law; for if there be no Law broken, there is no foundation for bringing the Man upon his Trial: to that if it hath no relation to a Law, it will command an Ignoramus in all equity. Enquiry therefore is neceſſary, and it belongs to that Precept, Dent. 13.14. Thou ſhalt enquire and make ſearch, and ask diagently. 3. THEY are to conſider the Quality of the Witneſſes, that offer to Teſtify to the Matter of Fact. It is not ſufficient that there is ſuch a Number of Witneſſes that ofter themſelves but they muſt enquire of what Validity their Teſtimony is, they may poſſibly be proved to be Sons of Belial, Knights of the Poſt; they may be found out that there is an Impoſſibility of their Witneſſing in ſuch a Caſe of their own Knowledge, by convincing Arguments; there are many Reaſons to in…alidate their Evidence, and this Command requires that they be look…d into, as far as may be. 4. THEY ought to weigh the Evidence given, with the Law ſuppoſed to be Tranſgreſſed. There are often impertinent Teſtimonies given, which are nothing to the purpoſe which they are Preſented for, and certainly theſe can have no influence to direct to the finding againſt the perſon to bring him upon the open ſtage Such was …orgs Teſtimony againſt the High Prieſt; he told a fair Story againſt him, but it no way proved him Guilty of a Conſpiracy, for which he died, tho' it might probably bring him into Suſpicion. And doubtleſs ſuch Evidence as no way toucheth the Caſe, is to be rejected by theſe as Idle & Impertinent, there being no Logical Argumentation capable of being built upon it.
(2.) JURORS of Trials; are ſuch as are, in ſome Governments aſſigned to Try perſons at the Bar, in order to their being found Guilty, or Not Guilty: and it is counted a great Provilege of the Subject, that he may thus be Tried by ſuch as are his Peers. Now it is a Matter of great Importance, that Theſe proceed according to Truth, ſo far as they are capable of finding it out, and therefore they ought in order to the Verdict to ſhew themſelves lovers of Truth As to that Caſe,
Queſt. 1. NETHER ſuch Jurors are concerned with the Law, or the Merit of the Cauſe, or only with the Matter of Fact?
Anſ. THERE are great diſputes Pro & Con…. and it ſeems to me, rather a Queſtion of Law than Divinity; and it depends on the Power which is devolved on each order of Men according to the Fundamentals of the … only in General, there can no True and Equal Judgment paſs upon any, unleſs the Fact be a ſufficient Evidence of the violation of the Law, for the Breach whereof the perſon is put upon his Trial: and if this belong to the Conſtitution of theſe Jurors, they cannot be True to their Truſt, except they thus do. And it ſeems to belong to them according to Law, otherwiſe they are very improperly asked by the Judges, Whether they find the perſon Guilty, or Not Guilty. For every Man of ſenſe knows, that the bare finding of a Fact, doth not declare the Man Guilty, for that neceſſarily refers to the Law, from the Breach whereof Guile properly ariſeth. Nevertheleſs in regard to the Enquiry after the Fact, there are theſe Two Duties come under this Command;
1. THAT they bring with them an Unprejudic'd Unbyas'd Spirit. The Laws allowing of the Party at the Rit to make Exception againſt the Jurors, is grounded on right Reaſon, and is a Privilege which the Law of Nature allows Men. He who hath Judged a Cauſe before he hath Heard it, is Prepoſſeſt, and his Judgment is Preoccupied. He that bears a Grutch againſt a perſon, cannot be thought a competent Perſon to offer his Verdict againſt him. He who is under ſpecial Obligations to one Party, cannot be thought to hold the Ballance Equally in his giving his Voice. Such an one ought to lay aſide all reſpect of Perſons and the himſelf entirely to the thing it ſelf, as if both perſons were utter Strangers to him. It is the excellent Commendation of the Tribe of Levi, Deut. 33.9. Who ſaid unto his father and to his mother, I have not ſeen him, neither did he acknowledge his brethren, nor know his own children: for they have obſerved thy word, and kept thy covenant.
2. THAT they curiouſly endeavour to ſatisfy themſelves in the Matter of Fact. This is the Firſt thing neceſſary in the Inveſtigation of the Truth, and that which indiſputably belongs to this order of Men. Either the Fact was done, or no; that therefore muſt needs be Proved, elſe the Law is not concerned in this Matter. We have therefore already proved, that every one, who is concerned to Search & Try a Cauſe, muſt be curious in this buſineſs, becauſe an Error in this, cannot be rectified afterwards. And here often falls out to be great Doubts & Difficulties in this, which therefore calls for the more diligent and deliberate Enquiry, according to the forecited, Deut. 13.14. and Haſte here many times prevents Juſtice.
(III.) ADVOCATES. Theſe alſo are an order of Men, whom neceſſity calls for; and, if they are true to their Truſt, are of great Uſe & Service to a People; but if they degenerate, they are a Poſt to the Places where they live in. I ſhall not here enquire into the Diviſions of them, into the ſeveral Orders, or Services allowed them; inaſmuch, as with reference to this Precept, it is only their Truth and Fidenty in their Function that is under our Conſideration. As it is neceſſary that they be well skilled in the Law, both Natural and Civil, elſe they cannot anſwer the End of their Employment, tho' they deſire it; ſo they ought to be Men of Integrity, and a good Conſcience, elſe the more Skilful, the more Dangerous. Now the duties lying on fuci… are more principally.
1. TO enquire into the Nature of the Cauſe offered them, before they undertake it, and be fully ſatisfyed in their Conſciences that it is Juſt. The proper End of Advocates is to endeavour that Juſtice & Equity may take Place in Civil Judicature; and to that they are to bend their whole endeavour; and that whether they are concerned for the Publick or for Private Perſons: for it is ſuppoſed that all Men are not fully verſed in Law & Equity, and ſo may ſtand in need of better information. They labour of an Error who think, that ſuch an one is obliged to Defend the Cauſe he is concern in, whether Right or Wrong as far as his Wit can reach, and Invalidate the contrary, by all Pricks he can devine. He ought therefore firſt to Know the Cauſe throughly, and he aſſured that there is Juſtice on his ſide. No Man is fit for a Pleader or Counſellor, but one that is able to ſay, as Paul, 2 Cor. 13.8. For we can do nothing againſt the truth, but for the truth. His duty therefore is, if he Knows the Caſe to be Bad, to Refuſe to undertake it, and give his ſolemn Advice to the laying of it aſide; and tho' he have Fees offered him, to Reſolve that his Tongue ſhall never be made Mercenary, to Proſecute any Falſely, or to Defend a Cauſe that is Unjuſt, and he knows it to be ſo, left he bring himſelf under that Malediction, Deut. 27.25. Curſed is be that taketh reward to ſlay an innocent perſon: and all the people ſhall ſay, Amen.
2. IN his Pleading, to avoid all Tricks, either to Blind the Truth, or Defer the Execution of Juſtice. If he pleads againſt any perſon, he ought to be Impartial in laying open the Caſe as it is. If it be for the Publick againſt a Criminal, he muſt take heed, that he neither put a Wrong Face on the thing, to Aggravate the Matter beyond what it is really, nor to ſuppreſs the Truth, in Favour to the Defendent, which he knows would Detect and Convince him, either in Affection to the Perſon, or for the ſake of an Underhand Bribe; and he ought to avoid all Inſolnt & Virulent Reflections, for it belongs not to his Poſt, either to Prejudge the Perſon, or to Determine his Cauſe; but only to lay Open the Matter, to Prepare it for the Judgment of Others: his Buſineſs is not to contend for Victory, but to manifeſt the Truth, and plead the Cauſe of the Innocent, but not the Nocent; ſo that if he, before, was perſwaded the Cauſe was good, yet when he finds himſelf miſtaken, he ought to be ſilent, and let his Client know, that he is his Friend no further than the Altars; and that he will not wrong his own Conſcience, whatever he may Gain by it. The Precept for this is plain, Exod. 23.2, 6. Neither ſhall thou ſpeak in a cauſe, to decline after many, to weſt judgment. Thou ſhalt not wreſt the judgment of thy poor in his cauſe. Nor yet ought be to uſe endeavours to Delay a righteous Proceſs, by endeavouring needleſs Non-ſuits, which will tend to the Injury of the Righteous Party: Nor to inſtigate any Perſons to maintain Litigious Suits, when he knows the Caſe is Bad, in h…pes thereby to advance his own private Intereſt; it being every Man's Duty, as a Chriſtian, to endeavour in his Place, to be a Fence…ker, if he hope to enjoy a title Claim to Bleſſedneſs; Matth. 5.9. Bleſſed are the Peacemakers: for they ſhall be called the children of God:
[6.] WHEN Caſes offered to Civil Judgment, do after all Remain Dubious, they ought to be leſt to the Judgment of God. It is good for every Man to maintain a Zeal for the Truth, and in his place to uſe regular Endeavours for the maintaining of it; but this Zeal ought to be managed by Knowledge, and a Sabmiſtion & the All-governing Providence of God. It is agreat Truth, that there is a great deal of wrong done, and Sin committed in the World, which God doth not bring to light ſo as to convince the Perpetrators of it, as that they may be born Witneſs againſt for it by Civil or Eccleſiaſtical C…ſure. Many times things may be ſo far detected, as there may be reaſon enough to ſuſpect Perſons, and be Morally perſwaded that they are Injurious to their Neighbours, or have broken the Rules of the Moral Law; and yet there is no legal Proof to be brought to Convince them, agreable to the Rules of the Word of God. We are to be humbled, when it is in things of an heinous nature, and ought to uſe Endeavours to detect them; but it is ſufficient to take Care that no publick Guilt be contracted by it, which will not be, unleſs the Rule be neglected. We are acquainted with the Direction God gave about the Caſe of a Private Murder, Deut. 21. For Men to make Laws for the Puniſhment of Sin, upon ſlighter Evidence than the Word of God hath preſcribed and limited, will not be to prevent Guilt, but to occaſion it. We are aſſured, that ſome Stances are here brought to Light, but others are ſuffered to ſcape; ſome Perſons are Wronged by their Neighbours, and have no Means in their hands Juſtly to Right themſelves in this World: We ought to Adore God in this, and reſt ſatisfied that He is Judge of all; and though things may ly Hid for the preſent, yet that is a Truth, Eccl. 12.14. For God ſhall bring every work into judgment, with every ſer…et thing, whether it be good, or whether it be evil. And the Tho't and Belief of this, ought to quiet our Minds, and make us to reſolve to Commit it to Him; aſſuring our ſelves, that tho' we muſt tarry a while, yet it will not Repent us at laſt.
WE have Conſidered and Aſſertory Teſtimony, and the ſeveral Duties belonging, thereto, wherein we are to maintain and promote the Truth in regard thereof. It now follows that we proceed to the Conſideration of,
Secondly. A Promiſſory Teſtimony; which hath reſpect to ſomething that is …tute, to which the Man obligeth himſelf.
A Promiſe is properly, and Obligation, wherein one Bindeth himſelf to another, to the True and Faithful Performance of any thing, in which he ſtakes hin Truth for Security of his doing it; and therefore ought very carefully to endeavour, that he may herein ſhew his great Value which he hath for the Truth. Now concerning Promiſes, it is to be obſerved, that ſome are made to God, others to Men; the former are uſually called Vows; and the Promiſes which Men oblige themſelves in, are either Hypothetical or Inconditionate, which I ſhall not conſider ſeverally; only obſerving, that a Conditionate Promiſe doth no further Bind the Conſcience to Performance, than upon the Performance of the Condition by the Party to whom it is made: And the Duties referring to this Command, may be reduced to Two Heads;
I. WE ought to have regard to the Truth, in our Making of them. Tho' a Perſon might poſſibly be Free before, yet when once his Word is paſt, he is become Bound, and therefore his love to the Truth, ought to make him very Cautions how he enters into ſuch a Bond.
AND here are Two things,
(1.) WE ought to Make no Promiſes, but ſuch as we can Perform. He who Promiſes beyond or beſides this, doth notoriouſly betray his Falſhood in the very Act of Promiſing; and that either Raſhly without Deliberation, or Palſely without any Intention of Performance, if when he Promiſeth, be knows it is out of his Power. Adn here is a double Ability to be conſedered, 1. A Moral Power: which faith that it muſt be a thing that is Lawful for him. That which would be Sin for the Man to Perform, becauſe in it he will Tranſgreſs ſome Moral Precept, is to be judged Morally impoſſible; nor can he be True to Men in it, but he muſt at the ſame time be Falſe to God, to whom he hath promiſed Allegiance; and for that reaſon when he Promiſeth, he is at that time under a Bond of Obedience not to Perform; for God hath forbidden it, who hath the power to break all his Bonds by His Diſallowance; and therefore he is Guilty of Sin in ſo Promiſing, and would encreaſe his Guilt if he ſhould Perform. And ſuch a Promiſe was Jeptha's Vow, if he bound himſelf without Limitation. They are therefore out of the way, who think, that tho' they are convinced, that their Promiſe cannot be accompliſhed without Sin, do yet think, that becauſe their Word is paſt, they muſt Do it … whereas God requires of them to Repent of their Raſhneſs and Impiety, and ſeek of Him Forgiveneſs for their Sin and Folly. 2. THERE is a Rational Power: When according to the Ordinary Courſe of Providence, the Perſon is able to Perform it. The thing it ſelf is Lawful, and the Man Binds himſelf to it; but tho' it may be a thing Lawful in it ſelf, yet it may not be Lawful for him. For tho' there is a governing Providence of God over all humane Affairs, ſo that a Man ought always to ſubordinate his Promiſes to himſelf, or others to it, (Jam. 4.15.) yet the Ordinary Courſe of this Providence muſt be conſidered, and nothing is to be Promiſed in Contradiction to that. We ought not therefore to Promiſe any thing, but what we have a rational aſſurance, that we have it in our Power to Perform. We ought not to Promiſe that which is not within our Compaſs; we neither have it in our own hands, nor is there any rational likelihood that we ſhould: or to Warrant a thing, that we can give no good Warrant for; or to Promiſe to do ſuch a Buſineſs in ſuch a Time, when we are ſure, or have reaſon to judge, that we have already Promiſed as much as we are capable of compaſſing.
(2.) WE ought to make no Promiſes, but with a firm Purpoſe to Perform. We muſt have this Reſolution in our hearts, when we give our Word, elſe we are Falſe in it, and diſſemble in our Expreſſions. Here therefore was their Fault, which the Prophet Charged them withal, Jer. 42.5. Then they ſaid to Jeremiah, The Lord be a true and faithful witneſs between us, if we do not even according to all things for the which the Lord thy God ſhall ſend thee to us. With, ver. 20. For ye diſſembled in your hearts, when ye ſent me unto the Lord your God, ſaying, Pray for us unto the Lord our God, and according unto all that the Lord our God ſhall ſay, ſo declare unto us, and we will do it. There muſt be no Reſerve, but what is under the Divine Government, for that is an Aequivocation; much leſs a contrary Purpoſe, for that is a down rightly: And tho' we may Impoſe on Men by ſuch Tricks, yet God is not Mocked, but will Charge Falſehood upon us, when he enters into Judgment with us.
[FEBRUARY 5. 1705.]