It Be Lawful for a Magistrate to Kill the Guilty: Wherefore, When, How, and What the Magistrate Must Punish: Whether He May Punish Offenders in Religion or No. The Eighth Sermon
I spake yesterday, dearly beloved, of the magistrate’s ordinance: there are yet behind other two parts of his office and duty, that is, judgment and punishment; of both which, by the help of God, I mean to speak as briefly as may be. Give ye attentive ear, and pray ye to the Lord to give me grace to speak the truth.
Judgment is taken in divers significations; but in this present treatise it importeth the sentence of judges brought in betwixt men at variance; which sentence is derived out of the laws, according to right and equity, as the case put forth of the parties required, and is pronounced to the intent to take up? the strife betwixt them at variance, and to give to every man his own. For at sessions or assizes parties appear and sue one another for some inheritance or possession, which either party affirmeth to be his by law, laying for themselves whatsoever they can to prove and shew what right and title they have to the thing. ΑἸ] which the judges do diligently hear and perfectly note; then they confer the one with the other, and lay them with the law; lastly, they pronounce sentence, whereby they give the possession to the one party, and take it from the other. The like reason is also in other cases and matters. And this is judgment; yea, this, I say, is the execution of justice. But this kind of quieting and setting parties at one is very mild in comparison of revengement and punishment, which is not executed with words and sentences, but with swords and bitter stripes. And good cause why it
[2 ut dirimat, Lat. ]]
should be so, since there be divers causes, whereof some cannot be ended but with the sword, and some more gently with judgment in words. But herein consisteth the health and safeguard of the kingdom or commonweal.
Judgment and punishment therefore are in the magistrate the most excellent offices, although peradventure they seem to upon be somewhat hard and cruel. But unless this which seemeth to “be cruelty be put in ure, all ages, states, and sexes shall feel the smart of crueller things, and that which is most cruel indeed. For it is not cruelty, but rather just severity, which (as the Lord commandeth) is put in ure for the safeguard of the guiltless and preservation of peace within the realm and commonweal. Put case there were a commonweal well furnished with most absolute laws for politic manners and matters of religion: suppose also, that in the same commonweal there were no magistrate to execute, and as it were to father! those laws, by his authority to bring and reduce all the deeds and sayings of men to the trial of those laws; and that therefore every man breaketh forth to what kind of life he list himself, and doth what he will: tell me, I pray you, what good do those written laws to the men of that country? Believe me, forsooth, not one halfpenny worth of good? The best part therefore of the magistrate’s duty consisteth in upright judgment and punishing revengement. And those two points require a man of courage and princely stomach; whom the Lord in his law describeth lively, and telleth what kind of man he would have him to be, and what the office is whereto he is called: which description I will rehearse and expound, because therein the judges person is chiefly touched.
Moses, at the Lord’s commandment, saith to the judges: lear the cause of your brethren, and judge righteously betwixt every man and his brother, and the stranger that is with him. Ye shall have no respect of any person in judgment, but ye shall hear the small as well as the great: ye shall not fear the face of any man, for the judgment is the Lord’s.” The holy prophet in these words toucheth two things chiefly: he declareth what the judge’s office is; and what vices or diseases do infect the judge, that he cannot fulfil his office as he ought to do.
[ qui tueatur, Lat.] [2 nihil prorsus, Lat.]
[3 Deut. i. 16, 17.)
Now touching the office of a good judge, the first point thereof is, that he repel no man, but hear every one, the small, the great, the citizen, the stranger, the known and unknown. And he must hear the parties willingly, diligently, and attentively. Herein there is admitted no sluggishness of the judge, nor a mind busied about other matters. Judgment before the matter be decided is utterly excluded, because it carrieth away the mind of the judge before the matter is known. The thing itself crieth out, that the matter must first be heard and well understood, before the magistrate proceed to judgment. And the common proverb saith, “Let the other party be heard too5” Very wisely said that judge, which told one that made a complaint, “That with the one ear he heard him, and kept the other ear for him upon whom the complaint was made” Herein we contain the perfect knowledge of the judge, and say, that he must not make too much haste in cases unknown, since he must judge them by the thing itself, and not by the parties, secret tales, and privy accusations. Secondarily, let him judge, saith he, yea, let him judge uprightly. To judge is to determine and pronounce truly and justly, according to the laws, what is good, what is evil, what is right, and what is wrong. We Switzers say, Urteilen, oder erteilen, oder richten; asif one should say, to distinguish a thing throughly considered, and to plane and make straight a crooked thing. Parties blinded with affections make straight things crooked, which the judge by applying the rule of equity and law doth straighten again; so that to judge is to straighten and to make plain. Moreover, to judge is, by defending and punishing, to keep in liberty. The magistrate doth judge, therefore, when he defendeth the innocent, and bridleth the hurtful person. But he must judge justly, that is, according to justice, and agreeably to the laws, which give to every man that that is his. The judge doth judge unjustly, when of a corrupt mind he pronounceth sentence contrary to all law and equity.