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but they cannot be drawn to this extraregular and rare contingency. For though most men are brought in upon suspicion or private accusation, yet the Apostle says that 'some men's sins are manifest, going before unto judgment:' and when this happens, the judge must not go in inquest after what he sees. And the same arguments may as well be urged against all dispensations and remissions, against favour and chancery, and destroy all equity, and all religion, as to destroy all conscience when it is certain and infallible. But I shall say something to the particulars.
24. (1.) It is true that a judge hath a double capacity, and he hath offices proportionable; some as a man, some as a judge; that is, he hath some natural and essential obligations, some which are superinduced upon his office. And therefore, I refuse to use this distinction as it is commonly used, and so made more subject to mistake and abuse. In this case the judge is not to be considered as a public man and a private man; for private is as much superinduced as public, and his other relations are as much to yield to his essential duty, as that of a judge: such as are the relation of a husband, of a father, of a tutor, of a master; and, amongst these, the more private is often tied to yield to the more public. But therefore in this case the judge is to be considered as a judge and as a man; and in this case the duties are sometimes disparate, but never contrary; and when there is a dispute, the superinduced must yield to that which is original; for whatsoever is his duty as a man, the judge may not prevaricate; for it is the man that is the judge, in the man that office is subjected, and the office of a judge is bound upon him by the conscience of the man. If the judge had two consciences, and two real persons, then it were to be granted that they were to be served and attended to in their several callings; but it is not so: they are but two persons in fiction of law, but materially, and to all real events, the same it is the same conscience ministering to divers duties and therefore as the judge is always that man, so his conscience is the conscience of that man; and because as a man he must not go against his conscience, so when that man is a judge, he must not go against the man's conscience, for the judge is still that man ruled by that consciences The essential duty of a man cannot by any superinduced formal
ity be dispensed with. Now to go according to our conscience and knowledge is the essential rule and duty of a man, which he cannot put off by being a judge. The new office. superinduces new obligations, but none contrary, no more than he can cease being a man by being a judge. "Certe prior anima quam litera, et prior sermo quam liber, et prior sensus quam stylus, et prior homo quam philosophus et poeta :" He is first a man, and then a philosopher, a poet, or a judge; and that which is first, cannot be prejudiced by what is superinduced. And if the judge go against the conscience of the man, pretending to do according to the conscience of the judge, the man shall be damned,-and where the judge shall then appear, any child can tell. If the Bishop of Bayeux, as earl of Kent, will rebel against his prince, the Earl of Kent shall lose his head, though the Bishop of Bayeux may plead his clergy. For in this there is a great mistake. To be a man and to be a judge, are not to be compared as two distinct capacities of equal consideration. To be a bishop and to be a judge are properly such, and have distinct measures; but to be a man is the subject of the two capacities, and cannot be laid aside as either of the other may; and therefore the distinction is vain and sophistical: and if it could be admitted in metaphysics (in which yet it appears to have an error), yet it can never be suffered to pass to real events. This being the ground of all the contrary opinion, and being found false, the superstructure must also fall to the ground. To the special cases this I answer:
25. (2.) An executioner may not refuse to do his office, though the judge hath given an unjust sentence: it is true only when the matter is dubious, or not known, or intolerable. But if the judge commands the hangman to flay a prophet alive, or to crucify Christ, or to strike his king through with a sword, I doubt not but the adversaries themselves will think he is not obliged to obey.-Indeed, this ought not easily to be drawn into a rule, lest such people turn it into a pretence. But if the executioner be sure, and the matter be notorious, and such as cannot deceive him, his hand ought not .to be upon an innocent. For as receivers are to thieves, so are executioners to unjust judges. When the fact is notorious, and the injustice evident, then it is such as all men'
Tertul. lib. de Testim. Animæ.
can see it and then, as if there were no receivers, there would be no thieves; so if there were no executioners of unjust sentences, the judge would be apt to reverse his sentence.
26. (3). Now whereas it is pretended that if a private notice were admitted against public evidence, it were like a private spirit against a public article, and would open a way to every pretension, it would dissolve the forms of judicatures, and introduce many evils: I answer, that if all this were true, and that for this there could be no remedy, nor yet any recompense in the special cases, it would follow that the law were prudent, if it did refuse to admit such a proceeding, unless she had some reason to trust the judge: but this were nothing to the judge. For the law therefore refuses his testimony, because she hath that which she presumes is better, and because she, not knowing the secret, follows the best way she hath. But the judge knows the secret, and he is not deceived, and he does not make pretences, for the case supposes him to speak according to his conscience; and therefore, although the law in prudence does not believe him, yet he cannot but believe himself, and therefore in duty to God must proceed accordingly, or must not proceed at all.
27. (4.) Neither is this like a private spirit against a public article; because this conscience of the judge does not impose upon the public, who hath power to admit or to refuse his sentence; but it is only for himself: and although his conscience ought not to be the public measure, yet it ought to be his own. I do not doubt but the law may go against the judge's conscience, but the judge himself may not go against his own.
28. (5.) And this we see verified in a matter of a private evidence; for though the judge hath seen it in a chamber, yet he must not judge by it in the court, the law will not suffer him to do so; but yet for himself he may so far make use of it, as to be persuaded in his conscience, and to understand on which side the right stands, and to favour it in all the ways that are permitted him. But the case here being not matter of life and death, the law hath power to dispose of estates, and the conscience of the judge is not obliged to take more care of a man's money or land than himself does, but it can be obliged to take care of men's lives: when the in
jured person is not able. A man may give away his estate, but he may not give his life away; and therefore he may lose his estate by such ways, by which he ought not to be permitted to lose his life. Add to this, that a judge having seen an instrument in private which could much clear the cause depending, may not upon that account proceed to sentence, because, it may be, the adverse party can give an answer to it, and make it invalid: whereas in matters of fact, of which the judge is conscious, there is no uncertainty nor fallibility. And, lastly, the suffering party, in the question of money or lands suffers no inconvenience, but what is outweighed to the public by the order of justice and solemnities of law; and the man that loses to-day for want of producing his evidence, may produce it to-morrow and recover it. But in matter of life and death, nothing can make recompense to the oppressed innocent; and if he suffers to-day, he cannot plead an error in the indictment to-morrow. For these and many other considerations the case is wholly different.
29. (6.) By some of these things we may also answer to the instance of a confident and opinionative judge. He may not prefer his private opinion before the sentence of the law, and bring it into open judgment. 1. Because he himself may be deceived in his opinion, and his confidence is no argument that he is not deceived. 2. Because if the sentence and decree of the law be less reasonable, yet the judge without sin may proceed to it, because the more reasonable is not in his choice, and the less reasonable is not absolutely and simply unjust. 3. In matters of prudence and civil government there is no demonstration of reason, but the legislative power may determine for the public interest as is presently apprehended, and may refuse the better counsel, and yet do well enough; for that which is simply the better, is not in these cases necessary; and in such things a man's reason ought not to be so confident, as he is of what he sees, or what is matter of faith; and therefore in these only he is to be guided by his own, in the other he must proceed by the public measures. And as in all things, not demonstratively certain or evident, the executioner is bound to obey the judge; so is the judge bound to obey the law; and the presumption will lie for the law against the judge, as it will lie for the judge against the officer. 4. And, yet after all, I do not
doubt but if a judge's conscience were effectively determined against a law, and that he did believe it to be unjust and. unlawful, he ought to follow his conscience. As if a judge did believe it to be a sin to put a man to death for stealing thirteen pence halfpenny, he might not condemn such a thief to the gallows. And he is not excused by saying, 'It is not the judge but the law that does amiss.' For if the judge believe the law to be unjust, he makes himself a partner in the injustice by ministering to an unjust law against his conscience. For not only he that commands evil to be done, is guilty, but he that obeys such a command. In this case, either the judge must lay aside his opinion or his office for his conscience must not be laid aside.
30. (7.) The instance of a priest and an excommunicate person unworthily absolved will no way conclude this question. 1. Because the case is infinitely differing between condemning an innocent, and acquitting the guilty. If any man pretends he is satisfied in conscience that the accused person is criminal, though it cannot be legally proved, yet there is no wrong done, if the accused man be let free; an inconvenience there may be, but the judge must not be permitted to destroy by his private conscience, against or without legal conviction, because the evil may be intolerable if it be permitted, and the injustice may be frequent and insufferable; but if it be denied, there may sometimes happen an inconvenience by permitting a criminal to live, but there can be no injustice done. It may have excuse, and it may have reason, and it may have necessity, that a judge refuse to consent to the death of an innocent; but that he should against his conscience kill him, can have no warrant and if he be not innocent, there may be reason to let him alone, but none to condemn if he be. Conscience can oblige a judge to an unsolemn absolution, but not to an illegal and unsolemn condemnation. This should have been considered in the Earl of Strafford's case. The law hath power to forgive the criminal, but not to punish the guiltless. And therefore if a man be absolved when he deserved it not, we may suppose him pardoned, and the private priest is not his judge in that case. For to refuse to communicate him is in act of public judicature, and to absolve him is an act of the same power, and therefore must be dispensed by authority, not by usur