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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 bé absolved when he deserved it not, we may suppose him pardoned, and the private priest is not his judge in that For to refuse to communicate him is an 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
pation, that is, by the public sentence, not by the private minister, since to give the holy communion to such a person is not against any essential duty of a Christian. And therefore if the priest knows him unworthy to communicate, he may separate him so far as he hath power to separate him, that is, by the word of his proper ministry: let him admonish to abstain, represent his insufficiency, threaten him with the danger; but if he will despise all this, the private priest hath no more to do, but to pray and weep for him, and leave him to God and the church. But of this I am to speak more largely in its proper place.
31. (8.) As for the case of a priest hearing confessions, though he find Titius accused by Caius, yet if Titius does not accuse himself, Titius is rather to be believed in his own case than Caius in another man's. Because in this intercourse every man is so concerned to do his duty, that every man is to be believed for himself and against himself, because if he speaks false, himself only is the loser. 2. Caius accusing Titius may, for aught the confessor knows, tell a lie and abuse him, and therefore he cannot pretend knowledge and conscience against Titius; and so this comes not home to the present case, which supposes the judge to know the accused person to be innocent. 3. This argument supposes that a man cannot be absolved unless he enumerate all his sins to the priest; which being in many cases false (as I have shewn otherwhere'), that which relies upon it can signify nothing.
32. (9.) Last of all, although the judge must lay aside his affections, and his will, and his opinion, when he sits upon the seat of judgment, because these are no good measures of judicature, nor ought to have immediate influence upon the sentence; yet he cannot lay aside his knowledge, and if he lay aside his conscience, he will make but an ill judge. 2. And yet the judge must lay his affections and his will aside never, but when they tempt him to injustice. For a judge must not cease to be merciful when it does not make him unjust; nor need he cease to please himself, so long as he is pleased to do right: these if they do hurt, indeed must be left off, else not; and therefore it cannot with any colour from hence be pretended, that they must lay aside his knowledge, when it is the only way by which he can do good.
33. (10.) To the authority of St. Ambrose, what I have already said is a sufficient answer. For he speaks of a judge's office regularly and usually, not what he is to do in cases extraordinary, and such is the present question. But he that said, "Sicut audit, ita judicat," would no less have said, "Sicut videt, ita judicat." The seeing of his eyes is as sure
a measure as the hearing of his ears.
34. (11.) As for the words of Ulpian I will give no other answer, than that Panormitan and Covaruvias, who urge them and are concerned to make the most of them, do yet confess that they make as much against them as for them, and that they say true, will appear to an ordinary understanding that
(12.) For although no judge must do acts of a private authority, yet he may as well use his own private knowledge, as he may use the private knowledge of the witnesses; for their knowledge is as private as the judge's till it be brought into open court, and when it is brought thither, it is as public as theirs; but however, to argue from the authority to the knowledge is a plain paralogism: for the prince who armed him with public authority, did not furnish him with a commission of knowledge, but supposed that to be induced by other ways.
(13.) And therefore the judge may, when he hath called witnesses, reject them upon his own certain knowledge, as well as use arts of discovery, or any other collateral ways to secure the innocent. For it may as well be inquired concerning the judge's using his knowledge to the infatuating or discovering the falsehood of the evil witnesses, as to the rejecting them. For if he must absolutely take all for granted which they say, then he must use no arts to invalidate their testimony; but if he may do that, he may do the other, and yet the calling in of witnesses may be to many good purposes, and by the collision of contraries light may arise, and from falsehood also truth may be produced like a fair child from a foul mother. And after all, though this question is not to be determined on either side by authorities, yet because amongst the writers of cases of conscience very many rely much upon the testimony of authors, I think it not amiss to say, that this sense of the question which I defend, was the sentence of many eminent divines and lawyers, particularly
Nicolaus Lyra, Adrianus, Angelus, Navarre, Hostiensis, Calderinus, Panormitan, Martinus, Johannes Arboræus, Oldendorp, Corrasius, Lessius, Bresser, and divers others; and therefore besides the strength of the reasons, I walk the more confidently by having such good company.
35. To conclude: All those advices of prudence which are given by the adverse party in this affair, as expedients for the judges to proceed by in such cases, I am ready to admit, if they will secure their conscience and the life of the innocent oppressed. But if they will not, but that the judge must give sentence for law or for conscience, the case to me seems very clear. God is greater than our conscience, but our conscience is greater than any thing besides. "Fiat jus et pereat mundus," said St. Austin; "ad hæc, imagine ne naturæ veritas obumbretur, curandum." For images and forms of things, the natural and substantial truth of things may not be lost or prejudiced. Let justice be done whatsoever be the event.
"Accipere personam improbi non est bonum, ut pervertas justum in judicio:" "It is not good to receive the person of a wicked man, thereby to overthrow the righteous in his
The Goodness of an Object is not made by Conscience, but is accepted, declared, and published, by it, and made personally obligatory.
1. No object can have its denomination from the judgment of reason, save only that from thence it may be said to be understood to be good, to be declared, to be consented to: all which supposes the object to be good, or to be so apprehended. Just as an emerald is green before the eye perceives it so: and if the object were not in itself good, then the reason were deceived in consenting to it, and a deceiver in publishing it.
2. This is true in respect of the material, fundamental, and proper goodness of the object; for this it hath independently
m Prov, xviii. 5.
of the conscience: and the rectitude of the conscience is dependent on this, and consequent to the perception of it. But yet there is a formal, extrinsical, and relative goodness passed upon an object by the conscience, by whose persuasion although an evil object do not become naturally good, yet it becomes personally necessary; and in the same proportion a good object may become evil.
3. The purpose of this is to remonstrate that we must rather look to the rule than to the present persuasion; first taking care that our conscience be truly informed, before it be suffered to pass a sentence; and it is not enough that our conscience tells us thus, unless God hath told the conscience. But yet if the conscience does declare, it engages us, whether it be right or wrong. But this hath in it some variety.
4. (1.) The goodness of an act depends upon the goodness of an object, that is, upon its conformity to a rational nature and the commands of God. For all acts of will and understanding are of themselves indefinite and undetermined till the relation to an object be considered; but they become good or bad, when they choose or refuse that which is good or bad respectively. To will to do an act of theft is bad, because theft itself is so: to be willing to commit an act of adultery is evil, because all adultery is evil and on the other side, to be willing to do an act of justice is therefore good, because justice itself is good. And therefore Aristotle defines justice by a habitude or relation to its object. It is "voluntas dandi suum cuique," "a will of giving to every one their due." And therefore our conscience, because it is to receive its information from the rule by which every action is made good or bad, and its motion from the object, is bound to take in that only which is really and truly good, and without sin or error cannot do otherwise.
5. (2.) Although conscience is bound to proceed this way, yet sometimes the younger takes the elder brother by the heel, or gets out before him, and the act gets before the object by indirect means. For though all things should be thought good because they are good, yet some things are made good because they are thought so; and the conscience looking upon its object finds error dressed up in the shape of truth, and takes it in, and adopts it into the portion of truth. And though it can never be made really and natu