therefore permitted, because other things which are real, certain, or probable, cannot be understood or perceived by them and therefore these things are not to be permitted, where it can well be otherwise. If it cannot, it is fit that their understandings should be conducted thither where they ought to go, and by such instruments as can be useful. RULE VII. A Conscience determined by the Counsel of wise Men, even against its own Inclinations, may be sure and right. FOR in many cases the counsel of wise men is the best argument; and if the conscience was first inclined by a weaker, every change to a better is a degree of certainty: In this case, to persist in the first inclination of conscience, is obstinacy, not constancy: but on the other side, to change our first persuasion when it is well built, for the counsel of men of another persuasion, though wiser than ourselves, is levity, not humility. This rule is practicable only in such cases where the conscience observes the weakness of its first inducement, or justly suspects it, and hath not reason so much to suspect the sentence of wiser men. How it is further to be reduced to practice, is more properly to be considered in the third chapter, and thither I refer it. RULE VIII. He that sins against a right and sure Conscience, whatever the Instance be, commits a great Sin, but not a double one. 1. His sin is indeed the greater, because it is less excusable and more bold. For the more light there is in a regular understanding, the more malice there is in an irregular will. "If I had not come to them (said Christ "), they had not had sin; but now have they no cover for their sin :" that is, because they are sufficiently taught their duty. It is not an aggravation of sin, barely to say, 'It was done against our John, xv. 22. conscience' for all sins are so, either directly or indirectly, mediately or immediately, in the principle or in the emanation. But thus; the more sure and confident the conscience is, the sin receives the greater degree. It is an aggravation of it, that it was done against a clear light, and a full understanding, and a perfect, contrary, determination. 2. But even then it does not make it to be a distinct sin. "Whatsoever is not of faith, is sin," said the Apostle; but he did not say it was two. It is a transcendent passing upon every sinful action, that it is against a known law, and a contrary reason and persuasion; but if this could make the act to be doubly irregular,-by the same reason, every substance must be two, viz. by having a being, and a substantial being. And the proper reason of this is, because the conscience obliges and ties us by the band of the commandment, the same individual band, and no other. The conscience is therefore against the act, because the commandment is against it; the conscience being God's remembrancer, the record, and the register of the law. A thief does not sin against the law and the judge severally; neither does the magistrate punish him one way, and the law another. The conscience hath no law of its own, but the law of God is the rule of it. Therefore, where there is but one obligation to the duty, there can be but one deformity in the prevarication. But, 3. In sins where there is a double formality, there, indeed, in one action there may be two sins, because there is a double law as he that kills his father, sins twice, he is impious and unjust; he breaks the laws of piety and justice; he sins against the fifth and the sixth commandments at once; he is a murderer, and he is ungrateful, and he is impious. But in sins of a single nature, there is but a single relation. For the conscience and the law, is the rule and the parchment; and he that sins against the one, therefore also sins against the other, because they both terminate but one relation. 4. But although he does not commit two sins, yet he commits one great one,-there being nothing that can render an action culpable or imputable in the measures of justice, but its being a deviation from, or a contradiction to, the rule. It is against my conscience, that is, against my illuminated and instructed reason, therefore it is a sin: this is a demonstration, because it is against God, and against my self; against my reason, and his illumination; that is, against all bands, divine and human. 5. Quest. But then what shall a judge do, who knows the witnesses in a criminal cause to have sworn falsely? The case is this: Conopus, a Spartan judge, walking abroad near the gardens of Onesicritus, espies him killing of his slave Asotus; who, to palliate the fact, himself accuses another of his servants, Orgilus, and compelled some to swear it as he affirmed. The process was made, advocates entertained by Onesicritus, and the poor Orgilus convict by testimony and legal proof. Conopus, the judge, knows the whole process to be injurious, but knows not what to do, because he remembers that he is bound to judge according to allegation and proof, and yet to do justice and judgment, which, in this case, is impossible. He therefore inquires for an expedient, or a peremptory resolution on either hand: since he offends against the laws of Sparta, the order of law, and his own life, if he acquits one who is legally convicted; and yet, if he condemns him whom he knows to be innocent, he sins against God and nature, and against his own conscience. 6. That a judge not only may, but is obliged to, proceed according to the process of law, and not to his own private conscience, is confidently affirmed by Aquinas, by his master, and by his scholars, and, of late, defended earnestly by Didacus Covaruvias, a learned man indeed and a great lawyer; and they do it upon this account: 7. (1.) For there is a double person or capacity in a judge; he is a private person, and hath special obligations and duties incumbent upon him in that capacity: and his conscience hath a proper information, and gives him laws, and hath no superior but God: and as he is such a one, he must proceed upon the notices and persuasions of his conscience, guided by its own measures. But as he is a judge, he is to do the office of a judge, and to receive information by witnesses and solemnities of law, and is not to bring his own private conscience to become the public measure. Not Attilius Regulus, but the consul, must give sentence: and since he is bound to receive his information from witnesses, as they prove, so the law presumes; whose minister because he is, if there be any fault, it is in the law, not in the judge; and in this case, the judge does not go against his conscience, because by oath he is bound to go according to law. He, indeed, goes against his private knowledge; but that does not give law to a judge, whose knowledge is to be guided by other instruments. (2.) And it is here as in case of execution of sentences, which is another ministry of law. "Ordinarius tenetur obsequi delegato, etsi sciat sententiam illam injustam, exequi nihilominus tenetur eandem," said Innocentius III. The executioner is not to refuse his office, though he know the judge to have condemned an innocent; for else he might be his judge's judge, and that not for himself alone, but also for the public interest. For if an executioner, upon hispersuasion that the judge did proceed unjustly against the life of an innocent, shall refuse to put him to death, he judges the sentence of the judge over again, and declares publicly against it, and denies to the commonwealth the effect of his duty so does a judge, if he acquits him whom the law condemns, upon the account of his private knowledge. (3.) It is like speaking oracles against public authority from a private spirit. (4.) Which thing, if it were permitted, the whole order and frame of judicatures would be altered, and a door opened for a private and an arbitrary proceeding: and the judge, if he were not just, might defame all witnesses, and acquit any criminal, and transfer the fault to an innocent and unsuspected, and so really do that which he but pretends to avoid. (5.) And the case would be the same, if he were a man confident and opinionative. For he might seem to himself to be as sure of his own reason, as of his own sense; and his conscience might be as effectively determined by his argument as by his eyes; and then by the same reason he might think himself bound to judge against the sentence of the law, according to his own persuasion, as to judge against the forms of law, and proceedings of the court according to his own sense. (6.) And therefore not only in civil but in the ecclesiastical courts we find it practised otherwise: and a priest may not refuse to communicate him, whom he knows to have been absolved upon a false allegation, and unworthily; but must administer sacraments to him according to the public voice, not to his own private notice: for it would be intolerable, if that which is just in public, should be rescinded by a private e Cap. Pastoralis. sect. Quia Verò de Officio et Potestate Judicis Delegati. pretence, whether materially just or no; not only because there are other measures of the public and private, and that to have that overborne by this would destroy all government; but because if this private pretence be admitted, it may as well be falsely as truly pretended: and therefore, since real justice by this means cannot be secured, and that unless it were, nothing could make amends for the public disorder, it follows that the public order must be kept, and the private notice laid aside. (7.) For the judge lays aside the affections of a man, when he goes to the seat of judgment; and he lays aside his own reason, and submits to the reason of the law,and his own will, relinquishing that to satisfy the law; and therefore he must bring nothing of a private man with him, but his own abilities fitted for the public. (8.) And let no man in this case pretend to zeal for truth and righteousness; for since in judicatures, legal or seeming truth is all that can be secured, and with this the laws are satisfied, we are sure we may proceed upon the testimony of concurring witnesses, because they do speak legal truth; and that being a proportionable conduct to legal persons, is a perfect rule for the conscience of a judge; according to the words of our blessed Saviour quoted out of Moses' law, "It is written in your law, the testimony of two men is trued," that is, it is to be accepted as if it were true, and proceedings are to be accordingly. In pursuance and verification of this, are those words of St. Ambrose: "Bonus judex nihil ex arbitrio suo facit, et domestica proposito voluntatis, sed juxta leges et jura pronunciat, scitis juris obtemperat, non indulget propriæ voluntati, nihil paratum et meditatum domo defert, sed sicut audit, ita judicat:" "A good judge does nothing of his will, or the purpose of his private choice, but pronounces according to laws and public right, he obeys the sanctions of the law, giving no way to his own will, he brings nothing from home prepared and deliberated, but as he hears so he judges." This testimony is of the more value, because St. Ambrose had been a judge and a ruler himself in civil affairs, and therefore spake according to the sense of those excellent laws, which almost all the civil world have since admitted. (9.) And the thing is confessed in the parallel cases: for a judge may not proceed upon the evidence of an instrument VOL. XI. d John, viii. 2 K e In Psal, oxviii. |