Изображения страниц
PDF
EPUB

which he hath privately perused, if it be not produced in court, though he by that could be enabled to do justice to the oppressed party; for he does not know it as a judge, but as a private man; and though that be a distinction without a real difference of subject, yet in effect it means, that the laws do not permit a judge to take notice of any private information, which might prove an inlet to all manner of violence and robbery. (10.) And therefore if a priest hearing the confession of Caius, understands that Titius was the complice of Caius's crime, he may not refuse to absolve Titius, though he do not confess the fact in which he took part with Caius; because he is to proceed by the method of that court where he sits judge. For private and personal notice is not sufficient. (11.) And if I do privately know that my neighbour is excommunicate, I am not bound to refuse him my society, till I know it legally; and therefore much less may a judge do a public act upon private notice, when we may not do even a private act referring to law without a public notice. (12.) And all this is confirmed by the authority of Ulpian': "Veritas rerum erroribus gestarum non vitiatur, et ideo præses provinciæ id sequatur, quod convenit eum ex fide eorum quæ probabuntur:" "The truth of things is not prejudiced by errors in matters of fact: and therefore let the president of the province follow that which is fitting for him, proceeding by the faith of those things which shall be proved." (13.) For since no man must judge by his own private authority, he must not judge by his own private knowledge. (14.) And to what purpose shall he call in witnesses, to give him public information, if when they have done so, he by his private may reject the public?

8. But if after all this you inquire, 'What shall become of the judge as a man, and what of his private conscience ? these men answer,—that the judge must use what ingenious and fair artifices he can to save the innocent, or to do justice according to truth, but yet so as he may not prevaricate the duty of a judge: he may use the prudence of a friend and a private man: let him, by various and witty interrogatories, in which he may be helped by the advantage of his private knowing the secret, make ways to entrap the false witnesses, as Daniel did to the two elders in the case of Susanna: or let him refer the cause to the supreme power, or resign his

IL. Illicita. sect. Veritas.

office, or make a deputation to another, or reprieve the injured man, or leave a private way for him to escape, or use his power of interpretation, or find some way to elude the unjust hand of justice, which in this case does him wrong by doing right. But if none of these ways, nor any other like them, can preserve the innocent man, or the judge's private conscience, he must do justice according to law, standing upright as a public person, but not stooping to particulars, or twisting himself by his private notices.

9. This is the sum of what is or can be said in this opinion; and though they speak probably and well, yet I answer otherwise, and I suppose, for reasons very considerable. Therefore,

To the question, I answer, that a judge in this case may not do any public act against his private conscience; he may not condemn an innocent whom he knows to be so, though he be proved criminal by false witnesses. And my reasons are these:

10. (1.) "Innocentem et justum non occides," said God"; To slay an innocent person is absolutely and indispensably evil. Upon which ground I argue; That which is in its own nature essentially and absolutely evil, may not be done for any good, for any pretence, for any necessity, nor by any command of man. Since therefore in the present case, the man is supposed innocent, he ought not to be delivered to death for any end in the world, nor by any authority, much less for the preservation of the forms of courts, or to prevent a possible evil that may accidentally and by abuse arise; especially since the question here is not matter of prudence or policy, but of justice and conscience; nor yet of the public interest, but of the judge's duty; nor at all, what the laws actually do constitute and appoint, but what the judge may really practise. Now, in all cases, if a man dies, it must be by the merit of the cause, or for some public end. The first is not supposed in this question, because the man is supposed innocent; and if the latter be pretended, it is an open profession of doing evil that good may come of it. And if it be answered, that this is true, if the man did appear to be innocent, but in law he appears otherwise: I reply, that it is true, to the law he does so, but not to the judge; and there

Exod. xiii. 7.

fore, though the law can condemn him, yet she cannot do it by that judge. He must not do it, because it being by an unavoidable defect or error, that the law may do it, and if the law could be rightly informed, she would not, she could not, do it, it follows that the judge who is rightly informed, can no more do it than the law itself, if she had the same information.

11. (2.) To judge according to forms and processes of law, is but of human positive right and constitution; for the law may command a judge to proceed according to his own knowledge, if she will trust him and his knowledge and in all arbitrary courts it is so; and in the supreme power it is always so, if it be absolute. But not to condemn the innocent, is of divine and eternal right, and therefore cannot be prejudiced by that which only is human. And indeed if we look into the nature and causes of things, we shall find, that the reason why judges are tied to forms and processes of laws, to testimonies and judicial proofs, is, because the judge is supposed not to know the matters brought before him, till they appear in the forms of law. For if a judge did know men's hearts, and the secrets of things and causes, supposing him to be honest, he were the fittest person in the world to be a judge, and can proceed summarily, and needs no witnesses. But this is the way of the divine judgment, who proceeds upon his own knowledge, though for the declaration of his justice to men, he sometimes seems to use processes, and measures of human inquiry; as in the case of Sodom, and the like. And in proportion, if God should reveal to a judge the truth of every case that lies before him, I think no man doubts, but he might safely proceed to judgment upon that account. This was the case of Daniel and Susanna. For she was convicted and proved guilty by concurrent witnesses; God revealed the truth to Daniel, and he arrested judgment upon that account. Upon examination of the witnesses he finds them disagree in the circumstances; but this was no legal conviction of theirfalsehood in the main; but it was therefore sufficient, because Daniel came in the manner of a prophet, and knew the truth from God, not by forms of law. Now it matters not, as to the justice of the proceeding, which way the truth be known; for the way of receiving it is but extrinsical to the main question: and as Daniel being made

judge by God, might not have consented to the death of Susanna, though not only the two elders, but ten more, had sworn that they had seen Susanna sin: so neither can a judge, to whom God by some special act of providence in behalf of truth and innocence hath made known the matter, proceed to sentence against that knowledge, which he by divine dispensation hath received.

12. (3.) If a king, or senate, or any supreme power, receive testimony of a matter of fact concerning any of their council, whom they know to be innocent; as if it be legally proved that Sempronius robbed a man, upon the kalends of March, a hundred miles from the place where the king or senate saw him sitting all that day; that they may not deliver him to death appears therefore, because they, being accountable to none but God, must judge by his measures, that is, so as to preserve the innocent, and not by those measures which men's necessity, and imperfection, and weaknesses, have made regularly necessary. But that which is regularly necessary, may irregularly and by accident in some cases be unjust, and in those the supreme power must make some provisions where it can, and it can when it knows the truth of the particular. For since the legislative power can dispense in the administration of its own laws upon particular necessities, or charity upon the affirmation and petition of him that needs it: much more must it dispense with the forms of proceedings in a case of such necessity, and justice, and charity, and that upon their own knowledges. The affirmation of the argument is, that princes and senates may, and must, do this; that it is necessary, and therefore, also just in them to do so. The consequent of the argument is this: That therefore if private judges may not do so, it is because they have no authority to do so, but are compelled by their princes to proceed by forms: and, if this be all, it declares the necessity of such proceedings to be only upon man's authority; and so, though by law he may be bound to do so, yet our inquiry being what he is tied to do in conscience, the law cannot prevail above conscience, the subordinate above the superior,-there being, in this case, a knowledge of the fact, and the law of God for the right.

13. (4.) For the case is this; God says, "Thou shalt not slay the innocent," and the judge does certainly know, that the accused man is truly innocent: the conclusion is, There

fore this man must not die. Against this, the argument opposed is this: Human authority says, Thou shalt not slay him that is convicted of a fault, whether by true or false witnesses here are witnesses which do convict him, and I know them to be false: the conclusion is, Therefore this man must die. Which of these two arguments ought to prevail, I think needs not much inquiry.

14. (5.) And what if Titius be accused for killing Regulus, whom the consul at that time hath living in his house, or hath lately sent abroad; would not all the world hoot at him, if he should deliver Titius to the tormentors, for killing the man whom the judge knows to be at home, it may be dressing his dinner, or abroad gathering his rents? But if this be so absurd (as it is indeed extremely), it follows, that he may use his private knowledge against a false testimony that is public. Or how if he sees the fact done before him in the court? a purse cut, or a stone thrown at his brotherjudge, as it happened at Ludlow not many years since? The judge proceeded to sentence upon intuition of the fact, and stayed not for the solemnities of law. Or put case that there be depositions offered on both sides, for and against the innocent, either directly or indirectly. If in this case the judge's private knowledge may determine for either, it follows that his private knowledge can be admitted as the instrument of justice; and if it may, it must: for nothing can hinder him to do it, but because he may not. But that he may, appears in the now alleged instances.

15. (6.) Adrianus puts another case, in which it is also without contradiction evident that private notice is to be preferred before public solemnity, where there is an error in this and none in that. The case I choose to express in this narrative. Viretta, a naughty woman, pretends to be wife to Coloro, an Italian gentleman, and brings a priest and witnesses whom she had suborned, to prove the marriage. The judge gives sentence for Viretta, and commands Coloro to pay the duties of a husband to her, and to use her as a wife. He knows the contrary, and that he is husband to Vittoria Morisini, and therefore pays her all his duty, and neglects the other; and he is bound to it, because no man's error or malice can alter the laws of God, and from paying that duty which he knows is due by the laws of God, he cannot be excused by any formal error arising in the administration of the laws of

« ПредыдущаяПродолжить »