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man. The same is the judge's case. For if the law commands him to do an act against a known private duty, he is so to follow the duty he knows he owes to God, in preserving the innocent, as Coloro is bound to preserve his duty to his wife, and the judge may no more commit murder than Coloro may commit adultery; but neither of them can be rescued but by their private conscience, therefore they may use that. And there is no escape in this instance, because the subject is as much bound to submit to the sentence of the law, as the judge is to the forms of it; and that which secures one, secures both.
16. (7.) The evils that may be consequent to the strict adherence to the forms and proofs of law against the judge's conscience, may be so great as to be intolerable, and much greater than can be supposed to be consequent to the following a certain unsolemn truth. And there is no man, but put the case so as himself and his party may be involved in ruin by false witness, and he will grant that himself is by all means to be preserved. Put case a whole order of the clergy, of monks, of lawyers, should be accused falsely and oppressed by evil men, as the knights templars were accused fiercely, and so were the religious in Henry VIII.'s time: if the king had known that the monks, and the Pope had known that the templars had been innocent, no man ought to have persuaded them to condemn the guiltless. For if the king had proceeded against them to confiscation, making use of his advantage gotten by the sin of vile men, the effect had been, that he would rather have gotten money by a lie, than have done justice to the oppressed according to his conscience. And indeed, because it is not to be supposed but all the world would have given sentence for themselves in their own case, it is to be supposed that the contrary opinion is but the sentence of men in prosperity, or of inexperienced scholars, who care not what load they put upon others to verify their own opinion. And what Christian will not condemin Pilate for condemning the holy Jesus, according to the testimonies of his false accusers, and against his own conscience? And let the case be put, that the witnesses had agreed, and proved foul things against the unspotted Lamb of God, and made all clear in forms of law, and that Pilate had known the Lord to be innocent and injured, could the
water in the basin have washed him clean, if he had, against his conscience in compliance with the solemn perjurers, have condemned him who was purer than the angels? In this case the effect had been intolerable, for which no pretence of necessity, or legal formalities, could have made recompense.
17. (8.) A law founded upon presumption binds not in the court of conscience, when the presumption is found to be an error. The law presumes that the heir entering upon an estate, if he makes not an inventory, does it to conceal the goods, and defraud the creditors. But if an heir does so by negligence, or ignorance, or an impertinent fear, or upon ill counsel, or be betrayed to do so; if the creditor knows that the goods are not sufficient, he may not in conscience take the advantage the law gives him, but is bound to do charity and justice by the measures of his private knowledge, and not by the measures of the law to do violence and oppression, which was the thing in question.
18. (9.) To the verification of the sentence of death upon an accused person there are required, 1. A reality of the crime. 2. A power in the judge. 3. And equity in the law. Now if divers men should swear that the judge hath a competent power, nay, though they threaten him with death if he does not, yet he may not exercise any such power, which himself privately knows that he hath not. So also, if he knows the fact does not deserve death, though men swear it, or a higher power declare it, or another competent judge affirm it, yet a judge must not consent to it, if himself knows it to be unjust. And I have read of an excellent prince, who because he did consent to the forms and processes of law made by his senate against the bravest of his subjects, against his own conscience and knowledge, repented of it all the days of his life, and was not pardoned for it till the day of his death; and the first confidence he had of pardon, was upon St. Paul's words, "He that is dead, is justified from sins." But then, since the defect of either of these two makes it unlawful for a judge to proceed according to the forms of law, and ties him to follow his conscience even against allegation and proof, much more must it be so, if there be no reality of fact in the accused party; because in the destitution of this, the laws themselves have no power, and therefore they can give none to a judge their minister. "Justis lex non est po
sita;" The law was not made for the innocent," but to defend them, and therefore hath no power to destroy them; and then the judge can have none,-and so cannot in that case be tied to proceed according to formalities,-and therefore must proceed according to his conscience, or not at all. For,
19. (10.) If a law were made that a judge should be bound to condemn an innocent person, though he knows him to be so, and to be accused by calumny, and supplanted by perjury, it were an unjust law, as all men (that I know of) grant, and indeed must grant. For it were a law made to encourage perjurers and oppressors, to discourage innocence: a law made against the intention of laws, which is, to defend the right, and punish the wrong-doer: it were a law disabling the judge to rescue the oppressed, and a law expressly disowning the cause of the afflicted: and if any judge should undertake his office upon such terms, he should openly profess, that if the case happened, he would do against his conscience. And all laws going the best way they can to find out truth, would never disable a judge to make use of it when he had found it out, and assisted the inquiry of the laws by a fortunate discovery. For the examining of witnesses being but a means find out truth, cannot possibly be so adhered to, as to be preferred before the end to which it is designed; that were as if a man should rather love to seek than find. Since, therefore, no lawyer ever was, or can be, so unreasonable as to decree that a judge shall not, in such a case, directly relieve the innocent, but proceed to his condemnation, it follows that he can have no obligation to do so, and then the obligation of his conscience can upon no pretence be declined. The law does not intend to oblige the judge in that case, because no law can be made expressly to do so; he, therefore, being free from the law in that case, stands bound to his private conscience, without excuse. Nay, the canon law expressly enjoins that a judge should give sentence according to his own conscience, as appears in" c. 1. de Re Judic. in 6. et in Clem. 1. sect. Verum de Hæret."
20. (11.) Suppose a judge should suborn false witnesses against an innocent; either he is bound not to proceed ac-cording to allegation and proof, but according to his secret conscience, or else he is bound to go on in his crime, and
effect that which he had maliciously designed. For it is not enough that he is bound to disengage the witnesses and take off the subornation: for suppose the persons already appearing will not cease, lest they should be shamed and ruined, but will take confidence from their crime, and perseverance from their publication, then there is no remedy for the innocent, neither can the judge rescue him from himself, nor give over sinning, unless he proceed by his private certain measures, and not by those which are false and public. For to say he may be sorry for his fault, and yet proceed in it, is to make him a hypocrite: if he confesses that he suborned the witnesses, and yet proceed to condemn the innocent, he is ridiculous, and makes the law put on the face of tyranny and unreasonable violence and oppression. So that either he must go on and sin to the end without remedy, or he must be admitted to proceed by his private conscience, and that in his case would be justice and penitence besides.
21. (12.) Lastly, all laws being intended for the good of the subjects, are bound not only to comply with their ordinary cases by ordinary provisions, but for their accidental needs by the extraordinary. And so we find it, that all laws yield in particulars, when the law is injurious in the special cases: and this is the ground of all chancery, because “ summum jus, summa injuria ;" and Solomon advised well, “Noli esse justus nimium," "Be not over righteous ;" and the justice of God being świɛíkɛla, gentleness and favour, equity and mercy, ours is best when we follow the best precedent now since no case is more favourable than the present, the laws are unjust that will not bend and stoop to the miseries of the oppressed; and therefore the judge having no hinderance, he is tied by a double band to relieve the oppressed innocent, by his direct sentence (where it can be admitted), or by his open declaration, and "quantum in se est," but at no hand to consent to his condemnation.
22. I conclude, therefore, with that rule of the canon" law, "Melius est scandalum nasci quam ut veritas deseratur;" "It is better that a scandal should be suffered, and an offence done to the forms and methods of judicial proceedings, than that truth should be betrayed and forsaken;" and what was said in the prophecy concerning our blessed SavCap. penult. de Reg. Jur.
iour, "Non secundum auditum aurium arguet," "He shall not reprove according as he hears," but according as he knows, is also true of judges in this case: they do judge most perfectly, when, in truth and in defence of the innocent, they follow the pattern of the divine judgment, and not the imperfection of the human, that is, they are to judge by the eyes, not by the ears;
Segnius irritant animos demissa per aures,
That is a sure sentence that can rely upon ocular demonstration; for our eyes are a better guard of innocence than the tongues of sycophants, and our conscience are surer informers than the forms of law; and since no law hath declared against it, the conscience is at perfect liberty; and yet if it were not, we are certain it is better to obey God than men ; the conscience is no man's servant, it is God's only. Conscience is God's angel: "Grieve not the angel, lest he smite thee; do nothing against him, lest he forsake thee."—" Viro bono fixum in omni vita est, traversum unguem à recta conscientia non discedere," said Cicero'; "Every good man is perfectly resolved not to depart from his right conscience a hair's breadth during his whole life."
23. And now to the pretences which are made on the other side, there will be the less need of a reply, if we consider that they only prove that a judge is tied to observe the forms of judicial process, and to proceed according to allegation and proof, ordinarily and regularly, as supposing that this is the best ordinary way of information, as it is most certainly. But as the law, using the best she hath, would not yet refuse a prophet from heaven, or a miracle to bring truth from her retirements, or her veil, so neither will she refuse any better way that can be offered; but whatever the law would do, yet the question now being concerning the judge, it is certain that the judge in the case now put, hath a surer way of evidence: and therefore as the law, if she had a surer way of evidence, ought not to go against so clear a light, so neither can the judge. And the arguments, only proceeding upon the usual suppositions, conclude that regularly judges must do as usually they can do, that is, proceed according to proof, because they can have no better way,
i Ad Atticum, xiii. 20.