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powers to pass the sentence on his own Bench, that he ought to lay down his commission, and to abdicate that power he hath, rather than to suffer it forced to a willing injustice.
And, truly, were the case mine, after all fair and lawful endeavours to justify the innocent and to avoid the sentence, I should most willingly yield to this last resolution : yea, rather myself to undergo the sentence of death, than to pronounce it on the known guiltless; hating the poor pusillanimity of Dominicus à Soto , that passes a nimis creditu rigidum, upon so just a determination; and is so weakly tender of the judge's indemnity, that he will by no means hear of his wilful deserting of his office, on so capital an occasion.
In the main cause of life and death, I cannot but allow and commend the judgment of Leonardus Lessius: but, when the question is of matters civil, or less criminal +, I cannot but wonder at his Aying off. In these, wherein the business is but pecuniary, or banishment, or loss of an office, he holds it lawful for the judge, (after he hath used all means to discover the falseness of the proofs, and to hinder the proceedings, if thus he prevails not) to pass sentence upon those allegations and probations, which himself knows to be unjust.
The reasons pretended are as poor as the opinion. “For," saith he, “the commonwealth hath authority to dispose of the estates of the subjects, and to translate them from one man to another; as may be found most availing to the public good : and here there appears just cause so to do, lest the form of public judgments should be perverted, not without great scandal to the people; neither is there any way possible to help this particular man's inconvenience and loss: therefore, the commonwealth may ordain, that, in such a case, the judge should follow the public form of judicature, though hereby it falleth out, that a guiltless man is undone in his fortunes, and yet his cause known to be good by him that condemns it." Thus he [.
But what a loose point is this! Why hath not a man as true propriety in his estate, as his life? or what authority hath the conmonwealth, causelessly to take away a man's substance or inheritance, being that he is the rightful owner, more than a piece of himself? When his patrimony is settled upon him, and his in a due course of law and undoubted right of possession, what just power can claim any such interest in it, as, without any ground of offence, to dispossess him? Or, what necessity is there, that the form of public judgments should be perverted, unless an honest defendant must be undone by false sentence? Or, rather, is not the form of public judgment perverted, when innocence suffers for the maintenance of a formality ? Or, how is the Judge other than
* Etenim quòd homo, qui officio suo vivit, debeat tantam jacturam facere, durum creditu est. Dom. Sot, ubi supra. t In causis civilibus et mirus criminalibus. I Less. de Jure, &c. 1. ii. de Judice dub. 10. Quia resp, ha• beat authoritateni disponendi, 8C.
and to pass
a partner in the injury, if, for want of his seasonable interposition, a good cause is lost, and a false plea prevails ?
That, therefore, which, in the second place, he alledgeth, that the subject can have no reason to complain of the judge, forasmuch as it is out of his power to remedy the case,
other sentence than is chalked forth by the rule of law, might as well be alledged against him in the plea of life and death; wherein he will by no means allow the judge this liberty of an undue condemnation: neither is there any just pretence, why an honest and wellminded judge should be so sparing, in a case of life; and so too prodigal, in matter of livelihood.
As for his third reason, that the mis-judgment, in case of a pecuniary damage or banishment, may be afterwards capable of being reversed, and upon a new traverse the cause may be fetched about at further leisure ; whereas death once inflicted is past all power of revocation ; it may well infer, that, therefore, there should be so much more deliberation and care had, in passing sentence upon capital matters, than civil, by how much life is more precious and irrevocable, than our worldly substance: but it can never infer, that injustice should be tolerable in the one, not in the other. Justice had wont to be painted blindfold, with a pair of scales in her hand: wherefore else, but to imply, that he, who would judge aright, must not look upon the issue or event; but must weigh impartially the true state of the cause, in all the grounds and circumstances thereof, and sentence accordingly? To say then, that a judge may pass a doon formally legal, but materially unjust, because the case, upon a new suit, may be righted, were no other than to say, I may lawfully wound a man, because I know how to beal him again.
Shortly, therefore, whether it be in causes criminal or civil, whether concerning life or estate, let those, who sit in the seat of judicature, as they will answer it before the Great Judge of the World, resolve, what event soever follow, to judge righteous judgment; not justifying the wicked; not condemning the innocent: both which are equally abominable in the sight of the Almighty.
IVhether, and in what cases, am I bound to be an accuser of another ?
and detestation, insomuch as it is the style of the Devil himself, to be accusator fratrum, an accuser of the brethren.
Yet not of his own brethren in evil. It was never heard, that one evil spirit accused another : but of our brethren ; Rev. xii. 10. It was a voice from heaven, which called him so. Saints on earth are the brethren of the glorious spirits in heaven. It is the wickedness of that Malicious Spirit, to accuse Saints.
But, though the act be grown into hatred, in respect both of the
agent and of the object; yet, certainly, there are cases, wherein it will become the Saints to take upon them the person and office of accusers.
Accusation, therefore, is either voluntary, or urged upon you by the charge of a superior.
Voluntary is either such as you are moved unto by the conscience of some heinous and notorious crime committed, or to be committed by another, to the great dishonour of God, or danger of the common peace, whereto you are privy: or, such as whereunto you are tied, hy some former engagement of vow or oath.
In the former kind, a worthy Divine, in our time, travelling on the way, sees a lewd man committing abominable filthiness with a beast. The sin was so foul and hateful, that his heart would not suffer him to conceal it: he, therefore, hastens to the next justice, accuses the offender of that so unnatural villainy: the party is committed, indicted, and, upon so reverend, though single, testimony, found guilty.
Or, if, in the case of a crime intended, you have secret but sure intelligence, that a bloody villain hath plotted a treason against the sacred person of your sovereign, or a murder of your honest neighbour, which he resolves to execute; should you keep this fire in your bosom, it might justly burn you.
Whether it be, therefore, for the discovery of some horrible crime done, or for the prevention of some great mischief to be done, you must either be an accuser, or an accessary.
The obligation to accuse is yet stronger, where your former vow or oath bath fore-engaged you to a just discovery. You have sworn to maintain and defend his Majesty's royal person, state, dignity; and to make known those, that wilfully impugn it: if now, you shall keep the secret counsels of such wicked designments, as you shall know to be against any of these, how can you escape to be involved in a treason, lined with perjury?
These are accusations, which your conscience will fetch from you, unasked. But if, being called before lawful authority, you shall be required, upon oath, to testify your knowledge, even concerning offenders of an inferior nature, you may not detract your witness, though it amount to no less than an accusation.
Yet there are cases, wherein a testimony, thus required, tending to an accusation, may be refused : as in case of duty, and nearness of natural or civil relation; it were unreasonably unjust for a man to be pressed with interrogations, or required to give accusatory testimonies, in the case of parents, or children, or the partner of his bed : or, if a man, out of remorse of conscience, shall disclose a secret sin to you formerly done, in a desire to receive counsel and comfort from you, you ought rather to endure your soul to be fetched out of your body, than that secret to be drawn out of your lips: or, if the question be illegal; as those, that tend directly to your own prejudice; or those, which are moved concerning hidden offences, not before notified by public fame, or any lawful ground of enquiry, which therefore the judge hath no power to ask : in
these cases, if no more, the refusal of an accusation, though required, is no other than justifiable.
But, where neither the conscience of the horridness of a crime done, nor prevention of a crime intended, nor duty of obedience to a lawful authority, nor the bond of an inviolable pre-engagement, call you
to the Bar; it is not a more uncharitable than thankless office, to be an accuser.
Hence it is, that delators and informers have, in all happy and well-governed states, been ever held an infamous and odious kind of cattle. A Tiberius and a Domitian might give both countenance and reward to them, as being meet factors for their tyranny : but a Vespasian, and Titus, and Antoninus Pius, and Macrinus, or whatever other princes carried a tender care to the peace and welfare of their subjects, whipped them in the public amphitheatre; and abandoned them out of their dominions, as pernicious and intolerable.
And, as these mercenary, flies, whether of state or of religion, are justiy hateful, next to the public executioners; so, certainly, those busy spirited men, which, out of the itching humour of med dling, run from house to house, with tales of private
detraction, may well challenge the next room in our detestation. This, together with the other, is that, which God so strictly forbids' in his Law; Lev. xix. 16. Thou shalt not go up and down as a tale-bearer amongst thy people; neither shalt thou stand against the blood of thy neighbour : I am the Lord : a practice, which wise Solomon, though a great king, and, as one would think, out of the reach of tongues, cries down with much feeling bitterness; Prov. xviii. 8. The words of the tale-bearer are as wounds, and they go down into the innermost parts of the belly : no less than five several times in his divine Proverbs *, inveighing sharply, as if himself had been stung in this kind, against these close, backbiting calumniations.
Shortly, then, accuse, when you are forced, either by the foulness of the fact, or the necessity of your duty: otherwise, reservę your tongue for better offices.
Whether a prisoner, indicted of a felonious act which he hath commit
ted, and interrogated by the judge concerning the same, may stand
upon the denial, and plead, “ Not guilty.” The Casuists vary; and, out of respect to their own laws, are much perplexed in their resolutions : making the great scruple to be in the juridical interrogations, which, if the judge have not proceeded in the due form of law required in such cases, may warrant the offender's denial : and, secondly, making diíference of the quality of the offence, and danger of the punishment; which, if no less than capital, may, say they *, give just ground to the accused party, either to conceal the truth, or to answer with such amphibolies and equivocations as may serve to his own preservation; in which course, natural equity will bear him out, which allows every man to stand upon his own defence.
* Prov. xi. 13. xx. 19. xxvi. 20, 22.
And the case, I perceive, is aggravated in foreign parts: as, by the rack, so, by an oath administered to the person accused, which they call Jurainentum calumnie t, which Lessius justly calls a spiritual torture, by the virtue whereof, he is solemnly urged, not to deny what he knows or believes to be true, concerning the business questioned : a practice, which I cannot blame Lessius 1, if he profess to wish, that the Pope and all secular princes would join together to abrogate, as being an evident occasion of much perjury.
To lay down and determine the case, as it stands with us, in our ordinary proceedings of justice, it must be premised :
1. To deny a known truth, and to aver a wilful lie, cannot be other than a sin.
2. There is a vast difference, betwixt concealing a truth and denying it.
3. It may be sometimes lawful to conceal some truths, though never lawful to deny or contradict them. 4. No man can be bound directly to accuse himself
. 5. It is consonant to natural equity, that a man, for the saving of his life, should use the help of all evasions that are not sipful.
6. It cannot be sinful, to put himself upon a legal trial, in a case importing his life.
7. There is no place for a legal trial, where there is an absolute confession of guiltiness.
These positions being pre-required, I say, that it is lawful for the prisoner, though convinced in his conscience of the fact, yet to plead, “ Not guilty,” to the indictment at the bar : forasmuch as he doth therein, according to the sense, both of the judge and jury, only hide and keep back that truth; the finding out and evietion whereof, lies upon their further search and proof: so as he doth, in pleading “ Not guilty,” in effect as good as say, “What. ever I find in myself, I have no reason to confess my guiltiness : I stand upon my lawful defence, and cast myself upon my just trial; yielding myself only so far guilty, as your evidence and proofs can make me.
Let justice pass upon me: I have no reason to draw on my own condemnation.” The plea, thus construed, is lawful and just; wherein, not the shuffling equivocations of the offender, but the upright verdict of a legal jury must carry the cause : to which purpose, that, which sounds as a denial, in the accused, is nothing else, but a professed referring himself to a juridical trial of that fact, which he is not bound to confess.
* Rodriguez. Tract. Ordinis Judicialis. cap. 10. † Sorus l. 5.4.6. de Justitia Rei. Art.). Less. de jur. I. ii. ca. 13. dub. 3.