67. The fourteenth Chapter. Of the office of Magistrates, especially

The fourteenth Chapter. Of the office of Magistrates, especially in exercising of Iudgement.

PRinces for the most part in the time of great quietnesse, ¹ as though they had made an end of their labors, vse to giue themselues to sportes and to pleasures. For so Alexander, when he had ouercome Darius, was made féeble through riotousnesse. But farre otherwise did Dauid behaue himselfe. For he thought it not ynough to haue conquered his enemie: but thought that the priuate euils and iniuries at home belonged also to his office: ² since that a publike weale is corrupted, euen as is a humane bodie, not onely by outward discommodities, but also by inward euils, as it were by certaine noysome humors. Yea, and such ought to be the ende of warre, that peace among Citizens and domesticall discipline maie be established. ³ And therefore Iustinian in the Preface vppon the Institutions of the Ciuill lawe: The Maiestie of the Emperour (saieth he) ought not onely to be adorned with armes, but also armed by lawes, that eache time, aswell of warre as of peace may be rightly gouerned, and that the Romane prince may not onely be conquerour of his enemies in battailes, but also by right course expell the lewdnes of malicious detractours, and that he may become aswell most religious for the lawe as triumphant ouer his enemies. And the law is, not mans opinion (as some haue foolishly thought) but an euerlasting precept procéeding from nature being the guide, and from the lawe. And that which is here spoken as touching nature, that doe wee much more truely vnderstand of God himselfe, the authour of nature. For that which GOD hath set downe ought to be a lawe vnto vs. And that lawe men doe oftentimes vnderstand by some light of nature, and (as Cicero saieth) by a long experience of affaires, and gouernment of common weales. For things being in such sort marked of wise men, committed to writing, and declared in their kinds and distributed in their parts become at the last a certaine Art, or else some similitude of an Art. Vlpian in the Digestes, in the Title De Iure & legibus, saieth that Ius, that is, right, is so called of Iusticia, that is, Iustice. This agréeth not with the Grammarians. For they affirme that the word Ius is absolute, & that that onely is iust, which is doone Iure, that is, by law or right; so as they think that Iusticia is deriued of Ius, but not Ius of Iusticia. But these things I passe ouer. This is certaine, that that thing is first which expresseth any thing: and the next is that which executeth and worketh that which is expounded. That did Aristotle cal ⟨…⟩, which is a remedying of iniurie. Then followeth a certaine habite & pronenesse of doing whatsoeuer is expressed. This may hereby also be prooued, ⁴ that in all Artes there is first a matter to be wrought vpon, then a science. For number is first before Arithmetick, and song before musicke, and euerie thing that may be knowen, before knowledge thereof. Wherefore right goeth before iustice. For ⟨…⟩, which is righteousnes, is as it were ⟨…⟩, y t is, the in being of right. I knowe there bee some which defend Vlpian, and say that he considered not the verie nature of things in themselues, but so as it is brought forth and breaketh out into Act. But how soeuer it be, the matter is not of great weight. A Prince ought to take speciall héede that he minister iustice, and that he doe it with a good minde and iustly. ⁵ For it is not sufficient that some good thing be doone, vnlesse the same also be doone well. And this who so doe, Vlpianus saieth they may be called Priests. For they be Priests and presidents of the lawes. And lawes be holy things; as it is in the Code De Legibus, in y e lawe Legis. Wherefore to giue sentence, and to speake law, is a holy thing. That sentence which is written: namely that Dauid did execute iustice and iudgeme~t, ⁶ some do so expound it, as they vnderstand, that he did not pronounce al things out of the written law, but euen much according to equitie and reason: sith that also is to doe iustice. But for equitie and reason there is no place, except where nothing is prouided for by the lawes: that is, where neither reward of well doing, nor punishment for wicked actes is expressely appointed. And it is specially to be noted, which is added, namely To all the people. For that betokeneth y t he did execute iudgement sincerely and truely, without respect of persons. And this is it so to beare rule as thou maiest be a helpe to the people. Salomon in his prouerbes: ⁷ By iustice (saieth he) shall the kings seate be established for euer. Contrariwise, Tyrants because of their iniquitie shal soone be taken away. Howbeit to execute iustice is manifolde and hath many parts. ⁸ For it behooueth both paciently to heare, wisely to know, vprightly to giue sentence, and couragiously to doe execution: Considering that many doe oftentimes iudge rightly: but yet for want of courage they onely haue their sentence in papers. Wee must take héede that the guiltie be punished, that discipline be established, that good lawes doe florish, that good manners may be preserued. This vertue is most profitable, not onely in peace but also in warre. These things ought a Prince specially to doe. For he should be as it were a certaine liuing lawe. But contrariwise they doe wickedly which thinke that the iudgement of causes doe nothing at all pertaine vnto their office. Such was Anthonius Caracalla, who woulde neuer giue iudgement. And vnto Adrian when he excused him selfe that he was not at leasure to helpe a poore woman, it was answered: Then I would not haue thee to beare rule.

That the charge of Religion belongeth vnto Princes.

2 But thou wilt say: ⁹ Is it lawfull for Princes to determine of Religion? Vndoubtedly it was lawfull for Saule to abandon Witches and Southsayers, sith God commanded them to be taken away. But they which saie that Prophane Princes (as they call them) ought not to deale in these things, they prouide verie ill for the safetie of the Church. ¹⁰ For what if a Pastor become a Wolfe, who shall take him away but the Magistrate? Or if the Bishops as it happeneth gouerne not according to the dignitie of the Church nor by the worde of God, who shall punish them? But King Ozias (they say) when he woulde sacrifice was striken with a leprosie. ¹¹ And Oza when he had put his hand to the Arke that was falling out of the Cart, was striken to death. Wherefore Princes (say they) ought not to intermeddle with these things. What shall they then do? They feigne that in the Church there bee two great lightes, ¹² and that the Pope with the Bishops be the greater light: & that the Emperour and kings and Magistrates bée the lesser light: These ought to take care, that is as much to say, as destroy their bodies, but the other the soules. So would they haue Princes to be onely certaine herd men to pamper the bodie. But the verie Philosophers doe not so absurdly iudge. For Aristotle in his Politicks saieth, ¹³ that the office of a Magistrate is, to prouide that the people may liue well and vertuously. And no greater vertue there is, than Religion. And God commaundeth in Deuteronomie that the prince should write out for himselfe the booke of the lawe, not onely for himselfe to kéepe, but also to compell others to kéepe it. And the law containeth not onelie ciuil gouernment, but also Ceremonies and the worshipping of God. And whereas the lawe is distributed into two tables, both of them are committed to the power of the Magistrate. Moreouer Paul saieth, that the Magistrate standeth in the stead and place of God, and that euerie soule ought to be subiect vnto the higher power. ¹⁴ From which place (saith Chrysostome ) neither Bishops nor Euangelistes nor Apostles be excluded. And Augustine against the Donatistes: It were a goodly matter in déede (saieth he) if Magistrates should haue power to punish adulteries, but might not punish y e whoredomes of the soule. And he addeth that kings ought to serue God, not onelie y t they themselues may liue modestly and godly, but also that they may bring others vnto godlinesse, and defende the worship of God. In all Artes (as saieth Aristotle ) there is a certaine respect vnto the principall Art. For example, the Art of Riding commandeth the Sadlers craft. Also the Art of Nauigation is aboue that Art which maketh Oers and sayles, wherefore séeing the office of a Magistrate is the chiefe and principall science, he ought to rule all the partes of a Common weale. In déed he himself exerciseth not those Arts, but yet ought he to sée that none doe corrupt and counterfeit them. If a Phisitian cure not according to the prescript of Galen or Hypocrates, or if an Apothecarie sell naughtie and corrupt drugges, the Magistrate ought to correct them both. And if he may doe this in other Artes, I sée no cause why he may not doe it in Religion. So Ezechias, Iosias, Dauid, Salomon, Constantine, and Charles shewed verie well that religion belonged vnto their charge. ¹⁵ Ozias was striken and that iustly. For God appointed him to be a king & not a Priest, he notwithstanding contrarie to the commaundement of God would offer sacrifice. But if he had corrected the Priest when he offended, or had made him doe his duetie, there shoulde not any euill haue happened vnto him for that matter. ¹⁶ Oza was striken vnto death because he rashly laide his hand vpon the Arke. The Leuites ought to haue carried it vpon their shoulders: neuerthelesse they laide the same in a Cart. And he was punished for laying hold vpon it when the Cart staggered.

What the duetie of Princes is in setting forwarde of Religion, looke the Epistles in the end of this worke.

3 Howbeit because the power of a Prince is féeble and without limits, therfore he hath néede of manie eies, manie hands, and manie féete. ¹⁷ Wherfore it is described by whom Dauid ruled the common weale, not onelie in prophane, but also in Ecclesiasticall affaires. Ioab being a valiant man, ¹⁸ and skilfull in the art of warre, the kinsman of Dauid, and of an approoued faithfulnesse, had the rule and gouernment of the warres. ¹⁹ That office was due vnto him by promise, because he did first smite and vanquish the Iebusites. Furthermore Dauid, to the inte~t that nothing should be done vnorderlie or be forgotten: he would haue a reconder or maister of the requests, to put him in mind of causes both priuate and publike. Him the Italians call Referendarium: The French men, Maistre des requestes, A Maister of the requests. Afterward he bent his mind to Ecclesiasticall affaires, and agréed together two families of Priests which were at variance. For those (as it oftentimes happeneth among Ecclesiasticall men) contended for the principall place. For which, although there be woont to be great debate betwéene prophane Princes, yet no where greater than betwéene them which ought most of all to contemne these follies. The two families of Ithamar and Eleazar contended betweene themselues for the high Priesthood. ²⁰ And least we should thinke that there were two high Priestes, wee must vnderstande that there was onelie one. Abiathar was he, whose sonne Ahimelecke Dauid made equall with Sadoch, y t they two might bee next vnto the high Priest. Howbeit some think that those two were as the kings chaplines, that wheresoeuer he should be, eyther at home or abroade, he might alwaies by them aske counsel of the Lord. Afterward in the time of Salomo~, Achimileck was constrained to giue vp his place, and in stead of him came Sadock. God had then long before commanded that y e Priests should be chosen out of the familie of Aaron: So as Dauid admitted not other families, but onlie followed the prescript rule of the lawe of God. This would not the Pope at this day suffer, to wit: that the Emperour should ordaine orders among Bishops and cardinals. And yet neuerthelesse Dauid did this, and thought not that he did any thing against his owne office. Dauid tooke the shildes of Golde of Hadarezer, and whatsoeuer Gold, siluer, ^{21 22} and brasse he had gathered out of Beta and Berothay and of King Thoi, he consecrated all wholly vnto the Lord. So in the booke of Numbers, what monie soeuer the Israelits tooke from the Moabites they did consecrate to the tabernacle. Rightlie did Dauid, and as it became a godlie King. For although he were prohibited by the Kings lawe that he should not heape to himselfe treasures, yet was there no let but that he might séeke for and kéepe those things, whereby the Temple of God might be builded and adorned. Yea and Moses commaunded all the vessels of the Tabernacle to be made of the spoiles of Egypt. God had before forbidden Dauid that he should not build him a Temple, yet he forbad him not to gather together the stuffe for that building. Godlie Kings imploy all things to the building and beautifying of the Church of God, ²³ and in the meane time, contemne not the outward ornaments of Temples: but the wicked Nabucadonezers, and Dionysij doe pull away all, euen with a contempt of God. Neither is it any maruell: In mindes that be vnlike, the indeuours be vnlike also. Howbeit Dauid and other Princes, to whom this care belonged, meant to signifie nothing else saue that they allowed of the worshipping of God. This also doe the Princes of the Papistes at this daie, and euer haue doone, and that oftentimes of goods euill gotten. But Dauid caried awaie these things from the Enimies, yea from those enemies, whom he knew to be condemned and iudged by God, that he might not séeme to haue doone any thing against the lawe of God. The people for adorning of the temple brought manie vowed oblations, much rather behooued it kings to doe the same. The Ethnickes also consecrated their goodly spoyles vnto Iupiter Feretrius: and whatsoeuer they had taken from their enemies, they committed a part thereof to their goddes. These things may be a sufficient argument that Dauid tooke not this warre in hande for couetousnesse sake, but to augment the glory of God. Euen so Christ, our true Dauid, when he had spoyled the house of his strong and armed enemie, turned all his spoyles vnto his owne vse: and of them which he had before helde captiues, made some Apostles, some Euangelists, some teachers: and good Arts, as Logicke, Rhetoricke, and Philosophie, which before had serued Diuels, he imployed vnto the buildings of his Church.

²⁴ 4 Doubtlesse clemencie is a goodlie commendation and woorthie for princes. Which also they themselues vnderstading doe place it almost in the first front of their Tythes: and of their subiectes will be saluted by the name of Most mercifull. And by thrée reasons they should be led to be gentle. ²⁵ The first is, because they be Gods lieftenantes vppon the earth, and therefore abooue others ought to imitate him. For, to haue mercie and to forgiue, is proper vnto God. Secondlie they rule and gouerne men, not wilde and brute beastes. Wherefore it is méete they should deale curteouslie with them. Lastlie by gentle dealing, they get themselues the goodwill of the people. Wherefore Salomon in the 20. Chapter of the Prouerbes sayd: ²⁶ That by mercie is the kinges seate established. ²⁷ And Cicero when he praysed or flattered Caesar said: that his valiant courage, his artes of warre, his victories & his triumphes, were comon vnto him with other souldiers, but that his clemecie, his sincere and perfect goodnesse pertained to himselfe. Therefore clemencie is woorthie to be praysed, ²⁸ but yet not alwayes to be vsed: For there is a time which requireth seueritie. Clemecie is a certaine affection of the minde, whereby we are prone to forgiue, and turne aside from reuenge. And the same (if it be not against iustice, if it doe not violate right and lawes, nor yet bréedeth a confusion of thinges) amongest men it is the matter of vertue: but if so be that it bring in those thinges which I haue recited, now is there no vertue there: but it dooth degenerate into vice, and is changed into slacknesse, negligence, ²⁹ and foolish pitie. Thus sinned Achab that would be more pitifull than God. So also sinned Saul, which spared Agag the king of the Amalechites, contrarie vnto that which the word of God had prescribed. So then this their pitie, is no vertue but a vice, séeing it hath no iustice ioyned with it. Dauid also was sometime infected with this vice what time as he was ouerpitifull towardes Absolon his sonne, and towardes Ammon.

VVhether it be lavvful for Magistrates to let the guiltie passe vnpunished.

5 This sentence is plainelie gathered out of the Scriptures, ³⁰ that the Magistrate ought not to set frée those whom God hath deliuered to be punished. But some man will obiect, that the Moabites, Ammonites, and Edomites, which ill vexed and betrayed the Hebrewes who fled vnto them, when they were spoyled by the Chaldeans, were sharplie rebuked by y e Propeht Amos though notwithstanding God had brought vppon them that calamitie. ³¹ Yea and the Chaldeans themselues are reprooued by the Prophet, ³² because they dealt ill with the Iewes. I aunswere, that the Iewes were not deliuered to the Moabites, Ammonites, and Edomites to be punished, but vnto the Chaldeans, as the Prophets haue prophesied. Séeing then God reueiled nothing at all vnto these people as touching the destruction of the Iewes to be executed by them, they were iustlie reprehended, and condemned of crueltie. For séeing they were their neighbours, and after a sort a kin, they shewed them not such curtesie and intertainement in that their calamitie, as they ought to haue doone. But the Chaldeans are therefore reprooued, because they excéeded measure against those which were ouercome. Neither became they cruell against the Hebrewes, to satisfie the will of God, but to fulfill their owne hatred & ambition. But what shall we say to Augustine, who would haue those that were guiltie and condemned, to be deliuered and yéelded vnto him by the presidentes of Aphrica, so they would promise to amend and repent? For he said that this was a part of his duetie, & vnlesse he obtained what he desired, he was offended, and complained that he could not obtaine that of authoritie which belonged to his office. Macedonius who had giuen into his handes one that was guiltie, wrote vnto him, that he marueled how this should belong vnto the office of Byshops, and he alleaged his reasons why it should not séeme so to be. Wherefore séeing there be Argumentes both on the one part & on the other, I haue thought good to set them downe to affirme what must be determined of the question. And for this end is this Treatise: because the guiltie are deliuered by God vnto Magistrates, to the end they should be punished by the Lawes: therefore it séemeth not in their power to let them goe vnpunished. But Augustine taught otherwise.

³³ 6 And in the first place I purpose to alleage his reasons. The first is, when repentance commeth, and promise of amendment, sinnes (as he writeth) are become more veniall or pardonable: wherefore somewhat of the seueritie of punishment must be forgiuen. Secondlie the Magistrate in punishing, ought to séeke nothing else than amendment or correction of faultes. And this is the best way of amending, that he which is guiltie should repent and purpose to liue better. Thirdlie after this life there is no place of amendment & correction: and it is daungerous, lest if they should straightway be put to death, they might fal into euerlasting punishments which should neuer haue ende, therefore life must be graunted them that they may repent and amend. Fourthlie it becommeth princes to imitate God, ³⁴ & he destroyeth not the vngodlie, but maketh his sunne to rise vppon the good and bad. And he suffereth and cherisheth them with most ample benefites, whereas notwithstanding he verie well knoweth both what they are and what they will be. So that Princes should much rather pardon offenders, séeing it is vnknowen vnto them what manner of men they will become at the length. He confirmeth his reason out of a place in the Epistle to the Romans, wherein it is said: ³⁵ Doest thou not know that the goodnesse of God leadeth thee to repentance? We (saith he) doe imitate God, when we would not haue the guiltie to bee destroyed but to be kept vnto repentaunce: Princes also should followe this. God doeth not punish verie manie in this worlde, yet doeth he otherwhile bring punishment vpon some, least he should séeme to haue cast off the care of the world. But he suffereth many to goe vnpunished, that we may perswade our selues that once at the length shall be the general iudgement, wherein according to their desertes he wil punish them that be obstinate and grounded in sinnes: but those which promise repentance and amendment, he giueth to the Church. Fifthly the heauenly father hath commanded, ³⁶ that we shoulde loue our enemies: but they which are condemned to death for their misdéedes, be enemies of mankinde: so according to the word of God we ought to beare them good will. But we can wish no better to them than saluation, that is repentance, amendment and eternall felicitie. Sixtlie, in the Church, they shall not straightway be admitted vnto the holie supper. First their minde shall be tryed by that publike repentance, they shall poure out teares in the holie congregation, they shall craue the ayde and prayers of the Church, they shall fast, they shall goe in the habite of Mariners, and they shall exercise themselues in godly workes. What else is this than to punish themselues iustlie? Wherefore those whome ye shall let goe, shall not escape among vs vnpunished. Seuenthlie that which we desire is easie, not onelie possible vnto you, because ye haue the power of life and death ouer them for whome we intreate. Therefore, when ye yéelde them vnto the Church, ye depart not from your duetie. For you excéede not the charge committed vnto you. Eightlie: that which we require of you, I would not haue you to doubt, but is for your owne profit. For ye as well as other Christians haue néede of mercie, vnlesse ye thinke your selues altogether frée from sinne. Then set them frée vnto vs, that your fault may also be forgiuen by God. Ninthlie it is méete that ye should follow the example of Christ. ³⁷ He acquited the adulteresse which was guiltie of death, he condemned her not: onelie he exhorted her to amendment, saying: Go thy way, sinne no more. Tenthly: After all this, consider ye the fact of Ioseph the husband of the blessed virgin: ³⁸ He being otherwise a iust man, was so mooued with mercie towardes his spouse, as although he knew her to be great with child, yet would he not put her to open shame or by accusing her of adulterie, abandon her to extreme punishment. Againe ye ought to haue a consideration of mans infirmitie, which is such, as being well weighed, it may not onelie aswage the griefe of the accuser, but also the rigor of the Iudge. Furthermore ye ciuill men, which would be accounted honest, boast euerie where as a token of good nature and gentlenesse, that ye had rather defend in place of iudgement than accuse: therefore ye ought not to be offended at vs, if we seeke the preseruation of them that be guiltie. Neuerthelesse, betwéene intercession and defence, there is a great difference: For he that defendeth that which is layd to y e charge of the guilty, affirmeth it to be well doone, the which we doe not. For neither doe we comfort and excuse théeues and murtherers & other malefactors, but confessing that they haue offended, we make intercession for their safetie. Moreouer, the maner of ciuill men is, that if they sée broyles risen in an other mans house, for that the father would punish the sonne, or the husband his wife, they come betwéene them and intreate that the matter may be pacified. And what they themselues would punish in their owne house, they intreate that it should not be punished in the familie of an other. Hereunto, euen you your selues which be rulers of the people of Rome, doe sometime in the Ecclesiasticall Synodes, make intercession for some priestes, that they be not more sharply dealt withall and according to the seueritie of the Canons of the Church. Wherefore that which you graunt vnto your selues towardes the Church, graunt in like manner vnto vs to vse at your tribunall seates and at your executions. Last of all, we while we craue of your power this kinde of obedience, chiefely haue this regard, that vnto the ministerie of the Church, and vnto the word of trueth which we preach, we may winne the loue and goodwill of the people. For whe~ they shall perceiue that the Ministers of the word of God and the pastors of the Church, doe so desire & thirst after the saluation euen of most wicked men, they cannot choose but loue them, and gladlie giue eare vnto them.

7 And this last Argument, as it séemeth to me mooued him to make these demaundes. Yet doe I not sée that other Byshops, especiallie those of the East part, were earnest in this matter, so farre as I might discerne by the most ancient Ecclesiastical histories. ³⁹ But as touching the saluation and repentance of the guiltie, there was no cause why the bishops should so much disquiet themselues, if the Ministers were brought to the prysons of the condemned men, before they were put to execution. For by exhorting them, by warning and teaching them those thinges which serue vnto repentance and amendment, they might as they doe in our dayes haue brought them by the helpe of God vnto acknowledging of their sinnes, and sound repentance. But I perceiue not that this wholesome ordinance in times past was in vse in the Church, especiallie when the Emperours now professed Christ. Now that we haue rehearsed the reasons of Augustine, I thinke good to admonish you hereof, to wit, that the letting goe of Benhadad which is declared in the 1. ⁴⁰ booke of kinges the 20 Chapter, is not in all parts conformable vnto the pardoning which the Byshops required of the Magistrates for them which be guiltie. For neither anie high priest, nor priest at all made sute for Benhadad. Further he himselfe made no promise of repentance or amendment, yea, and there was nothing at al specified concerning Religion. Yet there remaineth some likelihood that on both sides he is let goe, whom God had deliuered vnto the Magistrate to be punished.

8 But after the reasons of Augustine let vs heare the Arguments of Macedonius. ⁴¹ First he said: In this letting goe, we séeme to allowe that which we woulde haue punished, but it is sinne that we would haue punished: therefore we seeme to allowe of sinne it selfe. So then we make our selues guiltie, because the allower and authour of the offence are both alike culpable, wherefore we are subiect to the same kinde of offence that they be whom we so let goe. Augustine answereth: We while we craue to haue those yéelded vnto the Church, séeke it not to the ende that sinne should goe vnpunished, but rather amended. Euen as God when he maketh the Sunne to arise vppon the wicked, doeth it not that sinne shoulde escape vnpunished, but (as the Apostle saieth) by his goodnesse prouoketh them to repentance. Moreouer wee woulde in any wise that sinnes should be punished, howbeit by an other kind of punishment, that is, by repentance, not by the sword of authoritie. Secondly Macedonius obiected: The sword of the ciuill power will be in vaine: to what end should there be prisons, Gallowses, hangmen, executioners, & such like, if guiltie persons as you would, should be let goe vnpunished? But Augustine saieth, that these things are not in vaine: because they punish the impenitent and obstinate: but others which promise that they will amende their life, your power and instruments of punishments doe bring them hereunto. For vnlesse they shoulde be terrified by this meanes, they would continue in their mischiefe. So as our intercessions are nothing at all against your seuere power: nay rather if the same were not, our intercessions should haue no place. Moreouer for this cause are they auaileable, that we maie leade a peaceable and quiet life among the wicked. Thirdly Macedonius argued: The punishments that we lay vpon the guiltie, are either iust or vniust: if they be vniust, let them be remooued and let them no more appeare in the Common weale: but if they bée iust, wherefore doe you hinder them with your intercessions? Augustine answereth: They be iust against them which bee stubborne and obstinate in their sinnes: but when there commeth promise of amendment and repentaunce, forsomuch as the guiltie person is changed, the punishments must also be changed or taken away. Hereunto Macedonius addeth: They which are so deliuered, it commeth often to passe, that they afterward fall againe into the selfe same vices, or else commit those that bee more grieuous. Augustine answereth: Séeing this is not doone by our fault nor will: neither doe wée make intercession for them that they may become such euill persons againe. Macedonius said yet further: Others being corrupted by this example will more vehemently runne astray, and so all things will be filled with theft and robberies. Whereunto Augustine said: God also will easily sustayne this kinde either of reproche or cauillation. Why doe we not also say that euill men are corrupted to commit daylie more and more grieuous sinnes, through the good will of God, whereby he suffereth and cherisheth the wicked? Lastly Macedonius had respect vnto the losses and hinderances doone vnto Citizens, and said: It wil by this meanes come to passe, that things taken awaie by theft and robberie will not be restored. Vnto this Augustine saieth: It would in no wise be so: for that is reckoned to be no true repentance wherein other mens goods are retained: neither is the sinne forgiuen vnlesse there be a restitution of the thing stolen. But yet he shewed after what maner: namely that if it may be or if the guiltie ma~ haue other mens goods in his handes. Howbeit otherwhile these robbers and théeues doe straight way consume those thinges which they haue naughtily gotten, doe riotously waste and destroy them, and when as there remaineth with them not one iot thereof to restore: when they haue changed their minde, they must be giuen to the Church, least they bée perpetually afflicted without a cause, and their repentance be hindered. These things haue we heard to be spoken of Augustine and Macedonius, according to both partes of the question propounded. I might adde, that Iames in his Epistle wrote, ⁴² that iudgement without mercie remaineth vnto him who hath not shewed mercie: ⁴³ and also that Ezechiel who vnder the person of God sayeth: I will not the death of a sinner, but rather that he be conuerted and liue.

9 Some man perhaps will maruell why Augustine set not downe among his reasons, ⁴⁴ that the guiltie sort must also be spared because they be ignorant, or be stirred vp by their lustes, or fraile affections, and therfore doe fall into so gréeuous offences. Héereunto I answere: Perhaps Augustine comprehended this kinde of Argument when he saide: That mans infirmitie must be considered. And certainlie, to be ignorant and ouercome with lustes pertaineth to imbecillitie. Howbeit we might otherwise answere; that he prudently omitted this, because he would not sustaine the person of a defender, but of an intercessour. It was none of his part to minish or extenuate sinne: He confessed those things to be noughtilie doone for the which he intreated, but he craued a remission Furthermore they which committed those things which they knew to bée punishable by the publike lawes, knew them to be sinne. ⁴⁵ Neither can they which be stirred vp with lustes be compared (as of some they be) vnto them that be phrenticke and out of their wit, who are rather to be pitied than punished, for as yet reason raigneth in those men, but in the other it is extinguished or else stopt. Moreouer the phrenticke persons doe not procure the euill vnto themselues, but they which obey lustes, doe otherwhile stirre them vp: they séeke occasions, they shunne them not nor yet wrestle against them, neither doe they represse outward actions; which they might doe although they were not yet regenerate. Wherefore the comparison is verie vnlike.

⁴⁶ 10 But because the reasons of Augustine (vnder correction of so notable a man) be not firme, therefore must they be confuted. Which as it is easie to be doone, so I iudge it verie profitable. First he saide, that sinnes are more pardonable, as he termeth it, when they haue promise of amendment and also repentance ioyned with them, and therefore ought no longer to be punished seuerelie. Vnto this we answere, that y e pardon which followeth faith vnto which is adioyned repentaunce is obtained of GOD, and pertaineth not to the ciuill Iudge, who hath respect to a thing already doone, not vnto those things that be present. ⁴⁷ He added, that the seueritie of lawes séeke correction, but that those men are corrected by amedment of life and repentance, and y t therfore nothing else must be any more wrested from them by violence. But correctio is sought for by y e Magistrats, not onelie for his cause y t is punished, but also for other mes sakes, which are terrified through beholding of y e punishmet, so as they maie desist from that kinde of sinne, which they sée is so seuerely punished, or else to beware that they fall not into such heynous offences. Wherefore it is written in Deuteronomie, ⁴⁸ the 13. Chapter, as touching the stoning of an Idolater: To the intent, that the Israelits may see & feare. ⁴⁹ Augustine further argued, that after this life there is no other place of amendment & repentance: and that therefore there is a danger, least if they that be guiltie should after this manner be suffered to depart out of this life without repentance, they woulde fall into those punishments which shall neuer haue ende. To this I answere, That repentance is not denied vnto them which he condemned: For time & space of repentance is giuen them: & there are appointed vnto the~ pastors & Ministers of y e word, to admonish them diligentlie of saluation, & to driue faith & repentance into their mindes. Notwithstanding it séemeth that Augustine in this place attributed ouer much vnto that publike repentance, as though the guiltie sort, if they should be put to death without it, might not haue saluation. But the matter is not in such sorte, and those things which be there spoken, if they be somewhat narrowly considered cannot stand together. For séeing that repentance of that kinde is not often renewed, least (as Augustine himselfe confesseth) so notable a remedy should through much frequenting become of no estimation, what shall we doe vnto them, which after that repentance fall againe into the selfe same and more gréeuous crymes? shall we bid them to dispaire? No verilie. If they beléeue sincerelie, and that they are againe penitent, no doubt but they shall againe obtaine pardon of God. And if that the sinnes committed after the same publike repentance may be forgiuen without it, why shall not those sinnes also be forgiuen without it which were doone in the former tyme? The grace of God is not tyed to those rites and ceremonies which are abolished in our age. In the stead of publike repentance they haue placed auricular confession, which cannot be denyed but was the destruction of the west Church. ⁵⁰ Further those words of Augustine are to be noted, to wit, that after this life, there is no place of amendment or repentance. For so is Purgatory taken away, if that those which depart from hence, are either exalted vnto glorie or else doe fall into punishment that shall neuer haue end.

11 That doubtlesse which was brought as concerning the imitation of God is of small force, ⁵¹ because his counsels far differ from ours. He is exempted from all lawes, & gouerneth all things by his owne frée will as it pleaseth him: Howbeit we liue vnder lawes, and must doe not those things which are séene but which are prescribed. God must be imitated of vs, but yet so much as our condition and the lawes laide vpon vs will beare. To the proofe that he brought out of the Epistle to the Romanes: ⁵² Because God of his benignitie leadeth euill men vnto repentance, it may also be saide, that Princes doe leade such guiltie ones to repentance when as with singular benignitie and gentlenesse, they make the way open for the Ministers of the word of God to come vnto them. ⁵³ God in verie déede commaunded vs to loue our enimies, ⁵⁴ howbeit that must be vnderstoode, that we doe it so much as the lawes and the safetie of the common weale doe permit. Is it not also commaunded vs that we should account as Ethnickes and publicans, ⁵⁵ those rebellious and obstinate persons, which will not heare the Church? And yet though we doe this we loue them well ynough. In like manner it is lawfull for the Magistrate to slaie the guiltie, and therewith to kéepe charitie towardes them. It was saide also, ⁵⁶ that these escape not vnpunished, séeing they punish themselues in the Church by fasting, wéeping, praying, and by exercising them selues in good workes. Some punishment indéede they sustaine, yet not so much as the lawes require, séeing it is not lawful for them to kill themselues, when as neuerthelesse by iustice they ought to be put to death. That Argument deriued from a possibilitie and easinesse, because Magistrates haue power of life and death ouer the guiltie, is not firme, for the powers which be y e gouernours of the world haue their sword fro~ God to take vengeance of them y t be guiltie & to defend honest & good men, and not that they should vse y e same at their owne will and pleasure. And it is certaine that they doe not their duetie, if they let goe y e guiltie vnpunished, séeing they haue receaued authoritie to punish them. ⁵⁷ He said moreouer: ye also y t be Magistrates, haue néede of y e mercie of God, séeing (euen like other men) ye passe not ouer this life without sinnes: wherefore yeelde ye vnto others, that it may also be yéelded vnto you. Neuerthelesse it must be considered, y t euerie man ought to giue, not y t which belongeth to another, but that which is his owne. Howbeit, whatsoeuer paine and punishment is forgiuen to the offender, it is not giuen of the Magistrates goods, but it is giuen either of the partie harmed, or else of y e publike discipline and seueritie of the lawes. Which thinges, if they be not kept & remaine safe, there followeth an incredible confused order.

⁵⁸ 12 And as touching that which is brought of the adultresse, whom the Lorde Iesus Christ absolued, it serueth not vnto this present question, because while Christ liued vpon the earth, he had no Magistrates office, but was an interpretour of the will of his Father, and he ministred the worde of God vnto the people. Wherefore it was not his part to condemne the adulteresse to death, séeing he tooke not to him the sword vpon the earth. Also he could not prosecute the accusation of her, séeing he tooke her not in the present crime, neither could he prooue the crime by witnesses: but as a Minister of the word of God, he first gaue a warning of repentance vnto the accusers: after that, according to his office he warned the adulteresse that she should sinne no more. So that we may not gather hereby that the fact of Christ, either diminished or hindered Magistrates from the lawfull punishing of them. Neither dooth the example of Ioseph the husband of the blessed virgin anie thing more belong vnto this matter, ⁵⁹ for he also was no Magistrate. But he would not bring Marie into obloquie, because he was iust. These wordes haue a dubble sense. ⁶⁰ First Tsedec, sometime among the Hebrewes is mercie, and therefore some thinke that Ioseph spared Marie whom he suspected of adultrie, because he was of a mercifull and pitiful minde: wherefore he determined to put her away, omitting the accusation of the fault. This interpretation if we followe, we cannot otherwise but condemne Ioseph of too much tedernesse & slacknesse, y t would not prouide to his power, for taking away y e euil of adulterie out of the Commonweale of Israel, according as y e lawe of God had comaunded. Or else we will say, that Ioseph, séeing he was properlie & truely iust, would not defame y e adultrie of his wife, because he was vncertaine of y e maner of the crime. For aswel it might be, y t y e maid sinned before they were betrothed as after. If she had falne after they were betrothed, ⁶¹ she was held for an adultresse: but if before, she might only be accused of whoredome. Which crime in very déede was no crime of death: yet he y t had doone the dishonor to her, should of necessitie marrie her: yet so notwithstanding y t her parents had giuen their consent. Wherefore séeing he was iust, he would not accuse Marie of adulterie, because he was not sure that it was adulterie. And so to vnwinde himselfe out of these perplexities, he determined to put away his wife. But y t this might not be, God forbad it by an Oracle. Brieflie, he was no magistrate. Further y • kinde of y e crime did not appeare. Howbeit they of whome we now intreate, be Magistrates, & they must giue iust punishme~t for a fault y t is knowen, & not for that which is vncertaine.

13 Moreouer Augustine willed that mans weakenesse should be considered: ⁶² for if that be somewhat diligentlie weighed, he thinketh that aswell the griefe of the accuser as the rigor of the iudge shall be broken. Profitable and verie godlie is the admonition, because it is euerie mans part to sorrowe, that the nature of men so noblie instituted, is fallen headlong into so great an imbecillitie. Howbeit, we must not be led by this sorrow (although it be iust,) either to diminish or to corrupt publike iustice. Besides foorth, ⁶³ it was inferred that good men say, they had rather defend than accuse before the iudgement seate. I know this hath bin often boasted of, but I affirme that both the dueties be necessarie vnto the commonweale, and that sometimes the one, and sometimes the other is more to be desired as may séeme most conuenient for the partie accused, for the time and for the place. For he that accuseth helpeth the Magistrate, who cannot sée all thinges by himselfe. He also that defendeth the partie accused, helpeth the commonweale: he instructeth the Magistrate against the vehemencie of accusers, or their slaunders or cauillations. Neuerthelesse Cicero said when he accused Verres, that he defended Sicilia. And so earnestlie did he labour, that his accusation should be accounted for a defence. ⁶⁴ And as for them which runne vnto families, among whome they perceaue either trouble or discord to be raised, if they doe it with this minde, that by their comming they may prouide least the good man of the house should excéede measure, either in punishing his seruants or children, or in correcting his wife, they are to be praysed: but if it be to the intent they may take away all kinde of chastisement and discipline, they behaue not themselues well. ⁶⁵ Neither also did he well, which for a priest made intercession to the Ecclesiastical Synode, if perhappes he meant that an adulterer, a whormoonger or a drunkard should be vnpunished, and honest Canons of the Church to be neglected for his sake. But if he onelie sought, that he should not be punished ouer sharplie or more than was méete, and that he should be gentlie handled, so farre as Ecclesiasticall discipline would suffer, he shall not be blamed. In déede Paul made intreatie vnto Philemon for Onesimus, ⁶⁶ which had fled from him. But that seruant being now renewed in Christ returned of his owne accord vnto his Maister. He was no captiue, neither was it a crime of death: Wherefore this example belongeth nothing to the cause which we haue in hand.

⁶⁷ 14 There remaineth the last Argument, which as Augustine thought was of verie great weight: namelie that it would winne fauour and good will to the word of trueth, which is preached by the Ministers of the Church. The reason in déed is plausible: For the Church of Christ séemeth herein to be amiable and louing, in that it hath carefull pastors, and such as be verie desirous of the saluation of Christians, and would gladlie haue their offences, though they be grieuous to be forgiuen them. Thus doe some say, that Constantine was allured vnto Christianitie, because our Byshops had promised him pardon for a parricide committed, for he had caused his sonne to be slaine. But whether this be true or no, I referre it to the Authors. That goodwill and fauor must be woonne vnto the holy Gospell, I my selfe also am of that minde, but yet not by such a way, as the lawes and discipline, (which be the thinges whereon the commonweale dooth depend) should be loosed. Grace vndoubtedlie is preached in the Church of Christ, as touching reconciliation with God, which is fréelie graunted vnto beléeuers without woorkes: but yet not to this end that the guiltie sort should be plucked away from Magistrates. This did not Christ nor the Apostles at anie time: neither doe the holie scriptures either in the old or new Testament commaund anie such thing: nor yet is it read that the holie fathers in olde time did set foorth anie such example. Augustine was verie milde of nature, and whereas this thing was alreadie vsurped in his time in the Church, and especiallie in the Church of Africa, he would not haue it abrogated. For which cause in that Epistle, he gaue place both to his owne nature and to the cause. And Iames when he saith, ⁶⁸ that Iudgement without mercie remaineth to him that hath not shewed mercie, ⁶⁹ speaketh not of Magistrates, but he earnestlie putteth other men in remembraunce to forgiue iniuries and offences: which can neuer sufficientlie be vrged among Christians. And Ezechiel when he saith: I will not the death of a sinner, ⁷⁰ but rather that he conuert and liue, writeth it of God, who is frée from lawes. But earthlie Magistrats must iudge according to lawes. Yea and good princes for their owne part would not the death of sinners, but their conuersion, and wishe them life, and would bestow it vppon them, but yet so farre as the lawes whereof they be Ministers doe permit them.

15 Now there remaineth that I declare what I am to say as touching this controuersie. ⁷¹ First let vs make a distinction betwéen inferiour Magistrates and superiour, from whom there lyes no appeale, and who haue absolute dominion. The inferiours must in anie wise iudge according to those things which are prescribed vnto them by superiour Magistrates. But the chéefe Magistrates, who both may interprete the lawes where they be obscure, and also haue committed to their iudgement those things, touching which there hath béene no decrée: thrée things let them, that they cannot forgiue punishments. First the accuser, that is the partie harmed, and which complaineth at the tribunall seate. For the Magistrate is the kéeper of Iustice, wherefore hée is bounde by his office to giue euerie man his right: which vnlesse he doe, he is no lawfull Prince. Secondlie the disturbance of the common weale. Aristotle in the 5. booke of Ethicks the 5. Chapter saith, That if Citizens sée that the iniuries doone vnto them are not recompensed by punishments, they thinke that they liue in seruitude, and that they be not now Citizens but bondslaues. But admit that the accuser be pacified, yea and that he intreateth for the release of the punishment of him that is guiltie, and sayeth that he is satisfied, is it yet frée for the Prince to forgiue the punishment? No forsooth. Because it is his part to defende the safetie of the commonweale: which continueth not, vnlesse that heinous offences be repressed by punishments. While an euill man is punished, others doe feare, but the impunitie of one or two maketh euill men the more bould. Wherefore if the Prince neglecting punishments slacke the seueritie of the lawes, now doth he not well vse clemencie but he bringeth in publike calamitie. The third thing which hindereth him is the lawes aswell of God as of nature: Further, the lawes of men which be honestlie and lawfullie made. Let him consider with himselfe, that people haue not chosen Princes, which should beare rule after their owne pleasure, but that they should be the Ministers of lawes. Yea sometimes they take away the rule from them if they gouerne not according to the lawes. The Persians had a certaine king called Cabades, that is glorious, who when he fauoured adulterers against y e prescript rule of the lawes, and had made an vniust, lawe, namelie that adulterers should not be punished vnlesse they had béene perpetrated by violence, the subiects tooke the matter in so ill part, as they cast Cabades out of his kingdome. But it is commonly saide: that Princes should be inclined vnto mercy and clemencie: I graunt, but yet so farre foorth as the right of the partie offended, the publike commoditie, and prescription of the lawes will permit. Moreouer this specially taketh place in doubtfull things, and when lawes are to be interpreted, and when the crime is of that kinde, as a punishment is not appointed to it by the lawes. ⁷² So then it is not well to desire of chiefe rulers and Princes in iudgement, that wicked men should be let goe vnpunished. But and if thou wilt say, that they now repent themselues, they will amend their life, and they be chaunged: I aunswere, that the Iudge respecteth not what they be nowe, but what they were when they committed the wicked facts. Whereupon Aristotle distinguishing the kindes of causes: vnto the kind Deliberatiue he assigned the time to come: for they which doe deliberate, take speciall héede vnto that which shall come to passe if this or that thing be doone. And vnto the kind Demonstratiue he ascribed the time present. For those things which be praised or dispraised, are set before our eyes as though they be now doone and be present. Vnto the Iudiciall kinde he assigneth the time past: because it is a Iudges part to inquire whether it be doone or no, and whether it bee well or ill doone.

⁷³ 16 But least I shoulde séeme without manifest testimonies to haue determined of the controuersie, I will first alleage what GOD saide vnto the Israelites before the lawe was giuen vnto them. ⁷⁴ Hee that shall shed mans bloud (saieth he) his bloud shall be shed by man, because he is made according to the Image and similitude of God. In the lawe of Moses, ⁷⁵ the welspring of punishments was that voyce of the Lorde: Take thou awaie the euill from the middest of thee. Of the Idolater he said: Spare him not, take no pitie of him, neither keepe thou him secrete, the 13. of Deuteronomie. Of the wilfull murtherer: Let him die. ⁷⁶ For a slaughter by chaunce, ⁷⁷ there were assigned Cities of refuge: But he which had killed one of set purpose, he said not, Let him goe, and giue him to my altar: but he saith: Plucke him awaie from my altar. The selfe same thing also is shewed out of the newe Testament. Wée haue in the Epistle to the Romanes, ⁷⁸ If thou doe euill, feare, for he beareth not the sworde without cause, for he is Gods minister and reuenger. Then if God appointed him to be a reuenger, it is of necessitie that he should punish wickednesse. The same thing we haue among the Ciuill lawes, whereof I might alleage many, but I will content my selfe with thrée, which are in the Digestes, in the Title De Poenis. The first is of Vlpian, which beginneth Si quis forte: where it is defined, that a guiltie man must bee punished, although he shall say that he hath certaine secrete things belonging to the safetie of the Prince, which he woulde reueale vnto him; neither must he be sent vnto him, because these things be doone and fained for the delaie or shifting off of punishment. Nay rather (saieth he) such wicked persons shoulde suffer the more grieuously, because they hid their secretes so long from the Prince: & because euen yet they would not haue disclosed them, vnlesse there had bin holde taken of them. And if the lawes suffer not that executions or punishments be differred or shifted off for the safetie of the prince, which is a great thing in the common weale, why shall they forgiue the guiltie, giuing them hope or promise of a better life? Another lawe is in the same Tytle, in the Lawe Respiciendum, and it is of Marcellus, wherein Presidents are admonished, that they should weigh the matter it selfe and the cause: and that they should not indeuour to get praise eyther for seueritie or for clemencie: let light faultes be lightly punished, and grieuous faultes, seuerely: but yet with some moderation. The third lawe is in the same Title, in the Lawe Diui fratres, where it is decreed that the Presidents should not make the sentences voyde which had bin giuen. These things doe plentifully testifie that it is not the part of Iudges or Magistrates to yéelde vnto intercessors those that be guiltie.

VVhether the excuse of Dauid wherin he purgeth himself because he punished not Ioab ought to be allovved, and vvhether a Magistrate maie vvell let passe a fault without any maner of punishment.

⁷⁹ 17 But here must we briefely discourse of a question: whether that excuse of Dauid which he vseth in the second Booke of Samuel the 3. Chapter, ought to be allowed. For there be Arguments on eche part. This briefe Treatise I hope will not be vnprofitable. ⁸⁰ For as Basill saith in the first Epistle: The histories and liues of saints, ought to be vnto vs as a certaine liuely Image of the Common weale of God. For in them wée may sée, how the lawe of God at all times hath bin obserued or neglected. ⁸¹ The fact of Dauid séemeth that it may be defended by these Arguments. First that Ioab was gratious and verie mightie among the souldiers, and might not bee punished without a great tumult, and that Dauid was warie least he shoulde doe any great harme to the Common weale, and raise vp more grieuous euils, séeing by the death of such a Prince and Captaine of the souldiers, the kingdome would be weakened. For so it is written of Honorius the Emperour, when he had at Rauenna killed Stillico the lieftenant of his warres, he cut off his owne handes. For after that he was taken awaie, he did neuer any thing worthie of fame. Further that precept of punishing great offences was affirmatiue, neither did it binde at all times. For so are we commaunded to come vnto the holy assembly, to do almes, and such like: howbeit not alwaies but when the time shal serue. Euen so Dauid, although he ought to haue punished Ioab, yet might he waite a time. Further, although he were then let by y e power of Ioab, yet was he neuer vnminded to punish. For at his death he commaunded his sonne Salomon, that he should not suffer his graie haires to descend with peace vnto the graue. And Plato saieth, that punishments are like vnto medicines, and must not be vsed when things séeme to be so desperate as they cannot be cured: and that Princes be as it were certaine Phisitians of the common weale. Yea and God himselfe oftentimes differreth punishments although (as Valerius Maximus saieth) he recompenseth the slacknesse with the greatnesse of reuenge. Also Saul when he had deliuered the Iabins from siege, ⁸² and inioyed nowe the whole Empire of Israel, and some had perswaded him to put such to death as had before refused him to be king, yet chose he rather to forgiue them. Dauid also forgaue Semei, & is therefore greatly commended. ⁸³ And Augustine oftentimes made intercession for Heretickes vnto the Emperours, and not onely for Heretikes but also for murtherers and most vngratious robbers by the high waie, & for ⁸⁴ Circumcellions. Lastly, Christ of whom Dauid was a shadowe and Image forgiueth all sinnes, and fréely receiueth all men into grace. Wherefore in this fact, he departed nothing at all either from his duetie, or from the Image which he represented.

18 Also on the other part there be other Argumentes, ⁸⁵ and those in my iudgement much more weightie. First he being the king of Israell, it had bin néedefull for him to haue stoode to the lawes of that Commonweale. And GOD in Deuteronomie commaunded with most effectuall wordes, ⁸⁶ that the king should prouide that the Lawe might be distributed vnto him, and should alwayes haue the same readie with him, and should rule by the prescript thereof. And it was alreadie written in the 21. Chapter of Exodus: ⁸⁷ If one shall by happe or chaunce kill an other, I will assigne him a place of refuge: But if he shall doe it by laying in waite, or of set purpose, thou shalt pluck him away from mine Altar. Howbeit, Ioab of set purpose and by laying in waite killed Abner, wherefore he ought in no place to haue béene safe. Further it is written in the 18. Chapter of Exodus, ⁸⁸ that they which should beare the office of a Magistrate ought to be valiant men, fearing God, louers of the trueth, and haters of couetousnesse. Wherefore Dauid in the punishing of wickednesse ought to haue bin valiant, and to haue feared the power of none: For this is not to haue a kingdome, but a kingdome to haue him. And he is had of a kingdome, which for obtaining of a kingdome, neglecteth iustice. ⁸⁹ Paul saith that a Prince is the Minister of God vnto wrath, and beareth not the sword in vaine. This duetie ought to haue bin performed by Dauid. In Deuter. the first Chapter God commaunded the Tribunes and Centurions, ⁹⁰ That they should not haue respect of persons in iudgeme~t. For so onlie the poore & men of lowe degrée should be bound to lawes, but the mightie, stoute, and noble should escape. But Iudges must neither be bent to wrath nor to mercie. And for that cause in Mars stréete where iudgement was most seuerelie executed, it was forbidden vnto Orators to stirre vp affections: yea rather the causes were also knowen after a darke manner, least the Iudge should be priuatelie touched with the fauor of anie man. Yea and in the Romane lawes in the title De poenis, in the lawe Respiciendum, thus it is written: The Iudges shall not indeuour to get glorie either by gentlenesse or seueritie. Howbeit in light faultes there is permitted some certaine inclinatio~ vnto lenitie, & in the greater faultes, vnto seueritie, but yet vsing therewith a moderatio~ of benignitie. In which place y e glosse rightlie obserued, y t there the rigor of y • sentece may be moderated, where there is nothing by name determined in y e lawes. And in the Code de Poenis, in y e lawe Decurionum, it is writte, y t the people must not be heard, if they cry y t anie man should either be condemned or deliuered: for that y e people is a beast of manie heades. Besides this, the Iudge is no other thing but the lawe it selfe that speaketh: neither can he by anie meanes seeme to be a Iudge, if he depart from the prescript rule of the lawe. And the wise man Syrach prudentlie admonished: ⁹¹ I would not (saith he) haue thee to be a Iudge, if thou be not able to take away iniuries: least thou feare y e person of the mightie, & cause an offence to arise to thy integritie. Also it was said vnto y e king of Israel which had suffered Benhadad the king of Syria to escape out of his handes: ⁹² Thy life shall goe for his life. Thou wouldest not punish, wherefore thou shalt be punished and shalt render an account of other mens wickednesse. There followeth of this tendernesse and foolish pitie, an innumerable sort of mischiefes. The gentlenesse of Eli both extinguished his familie, ⁹³ & in a manner subuerted the publike weale.

⁹⁴ 19 But thou wilt say, that God dooth patientlie beare these thinges: thou sayest wel. But consider with thy selfe, that if inferiour Iudges so behaue themselues in the Commonweale, how will the prince take that? No doubt but he would condemne them of treason. And doe we thinke, that GOD will not take it to be wickedlie doone, if he sée his lawes contemned and trodden vnder foote? Dauid sawe a daunger to hang ouer him: But he had the promise of God, and that was not written in the winde or in the water, but was stable and eternall. And what if he had bin cast out of his kingdome? Yet God could haue reserued him full and whole. Wherefore we sée that Dauid was so troubled in that he depended somewhat of men. It had bin a hard matter to haue punished Ioab, yet should he at the leastwise haue attempted it. He dooth nothing here now, onelie he complayneth of the power of Ioab. In verie déede I deny not, but that punishment may sometimes be differed & that fit occasions may be waited for: but to doe nothing at all, it was too great a lenitie. And surelie there be manie causes why punishmentes ought otherwhile to be differred: ⁹⁵ as appeareth in the Code De Poenis, in the law, Si vindicari. First, least the Magistrate should doe anie thing vnaduisedlie in his wrath. That lawe did Theodosius the Emperour write at the request of Ambrose, when he was by him grieuouslie blamed and excommunicated, because through a wilfulnesse, and rage of minde he had bin ouercruell against the Thessalonians. That historie, and cause of the lawe is set foorth in Socrates, and is repeated in the decrees, Cause 11. Quest. 3. the Chapt. Apud Thessalonicam. Wherefore it is prouided, that betwéene the sentence giuen, and execution should be xxx. dayes space. An other cause of delay is, if the woman which should be executed be great with childe. Also a seruat ought to be differred vntill he haue made an account vnto his Maister, and haue certified him of all thinges. The execution likewise of him against whom a thing is examined by tormentes is differred, y t it may be knowen whether he stand to his opinio. For men being oftentimes ouercome with torments, confesse those thinges which they neuer thought. Likewise executio~ is manie times differed, so often as we are to inquire of other crimes, or of the~ y t be priuie to thinges. And these onelie (so farre as I know) may be y e iust causes of differring punishment. For if a man that is condemned in a prouince, say that he hath somewhat which pertaineth to the safetie of a prince, y e Roman lawes decrée, that he should not be heard, because he séemeth onelie to séeke y e delay of punishmentes. Neuerthelesse, & if he haue anie thing y t pertaineth to y e prince, he should haue shewed it before. But now none of these matters ca~ serue for Ioab, wherfore Dauid should not haue differred his punishment so long.

20 Sometime punishment is forgiuen, if a man shall offend vnder xxv yeares of age. ⁹⁶ Albeit an adulterer is not pardoned, although he be vnder that age. And besides this, it must be considered, whether a man haue sinned by deceite, or by the prouocation of his minde, or by wantonnesse, or rashlie. For in him that hath vsed deceite or laying in waite, the punishment also is augmented. But Ioab vsed both wicked deceite, and hauing called Abner after a courteous and friendlie manner, slue him euen before the publike place of iudgement, and violated the publike faith. Also punishmentes may be augmented, as we haue it in the Digestes De poenis, in the lawe Aut facta: If a fault be committed by a multitude through sedition, then verilie some one man is more gréeuouslie punished to the terror of others. By this lenitie of Dauid some are after a sorte animated vnto detestable factes. For afterward Théeues were so hardie as to kil Isbosethe at his owne house: Ammon to deflower his owne sister: ⁹⁷ Absalon to slay his brother Ammon: ⁹⁸ And Ioab himselfe to kill Amasa. We cannot perceiue that Dauid behaued himselfe on this wise towardes others, ⁹⁹ sith he commaunded that the Amalechite [which by his owne confession] furthered Saul vnto his death: and afterward, that the théeues which had slaine Isboseth, ¹⁰⁰ should foorthwith be slaine. It may also be perceiued that he somewhat followed his owne priuate affection vnto Ioab, ¹⁰¹ for he was his owne sisters sonne. But albeit he were not led with anie such affection, yet he made a great shewe thereof. For he that in the selfesame or in the like cause forgiueth one man and punisheth an other, cannot séeme to be led with the loue of iustice. Dauid in déede was a man of a gentle and méeke heart, yet should he not haue polluted that worke of God, and haue set a colour on y e vessel which was bewtifull of it selfe. For this was to communicate with other mens sinnes. What shall we therefore say? Dauid no doubt was holy and feared God: yet so excellent a bodie was not without his blemishes. Euen as there is no day so bewtifull and cléere but hath his night: so was there neuer man so holy and perfect in euerie respect, but was corrupted with some sinne. Verilie we ought to follow and imitate the vertues of godlie men, but not to dissemble their faultes.

¹⁰² 21 Now will I in fewe wordes confute those reasons which were brought on Dauids side at the beginning. Ioab was mightie: what then? Assuredlie Dauid had God himselfe on his side. Did he peraduenture thinke him to be weake? Furthermore he had all the Israelites, which so much attributed vnto Abner, y t out of all doubt they would haue ayded Dauid in the punishing of Ioab. That which was brought as concerning y e delay of punishmentes, it is alreadie aunswered. For I say not, that he should straightway haue bin slaine. He should haue bin taken & cast into prison, his cause was to be knowe~: lastlie, punishment was to be executed. But in that he differred y e same euen to his death, the delay was ouer great. But at his death he gaue it in charge to his sonne Salomon. Yea, and Dauid himselfe aunswereth farre otherwise. Let God iudge (saith he.) Truelie this is not the part of a Magistrate to cast the iudgement of causes vppon God. Punishmentes be like vnto medicines: those are not to be vsed except when they may profit. But if they had not profited Ioab, yet might they haue profited others. God differreth punishmentes: therefore Dauid also dooth rightlie differre them. But the dooinges of princes must not be compared with the dooinges of God. For God is eternall, and immortall, but a prince may die. And what if he die to morrowe? Who shall then take punishment of the wicked? But God if hée doe not take punishment to daie, yet will he take it to morrowe, or when he himselfe will. And further, he hath a through triall of all mens mindes, and he séeth for what cause euerie thing is doone. But vnto men is permitted no mitigation in the lawe of God. Saule forgaue: I graunt, neuerthelesse of his owne: but Dauid forgaue that which belonged to an other man. Augustine made intercession for heretickes: Howbeit, this he did least the Ethnikes should thinke that Ecclesiasticall men prosecute their owne displeasures. Further he did not that to the intent he would take away the lawes of princes: but that he knewe that the Emperours did otherwhiles permitte their presidentes that they should haue power to remit somewhat of the bitternesse of the lawes and punishmentes made by them, if they did thinke it profitable. But as touching Circumcellions, how rightlie he intreated for them, let he himselfe sée: For they were both theeues and homicides. We doubtlesse must liue by lawes and not by examples. Christ forgiueth sinnes, and Dauid was a shadowe of him. I graunt that in déede Christ forgiueth, yet is that in the kingdome of the Church. But Dauid gouerned euen the political kingdome. ¹⁰³ Neither is alwayes the Argument firme enough that is take~ from figures. For otherwise we will say, that certaine harlots, which are mentioned in the holy Scriptures sinned not because they were shadowes and Images of the Church. And Christ himselfe, although he be inclined vnto mercie, and forgiueth manie thinges, yet shall he in that last time be a seuere iudge, and who will not be intreated. And he shall say vnto the vngodlie: Go ye cursed into euerlasting fire. ¹⁰⁴ And altogether in the same state be they also which by reason of the power of men remit excommunication and Ecclesiasticall discipline. Howbeit what is to be determined of that, we haue declared elsewhere in his owne place. But here perhaps some man will obiect: ¹⁰⁵ that Dauid is accused of vs without a cause, for that he in this matter, as at manie other times, followed the guiding of the holy Ghost, and for that cause sinned not at all. Neuerthelesse, I am not woont willinglie to vse this kinde of excuse, vnlesse I sée that the thing which is doone against the common lawe, be allowed by the holy scriptures. Further I doe not here contend against anie thing, but the excuse of Dauid. For he saide not that he was led by the impulsion of the holy Ghost: but that Ioab was mightie and gratious with the souldiers, and might not be kept vnder by the lawes. This excuse doe I say must not be receaued.

¹⁰⁶ 22 Howbeit, séeing they séeme to be reprooued which doe iudge others (and truelie not amisse, séeing they also are infected with the same faultes,) let vs sée whether they iudge rightlie which thinke that Iudges cannot nor ought not to exercise iudgement against others which are accused, when they be guiltie of the selfesame crime themselues. But this were to ouerthrowe all publike-weales, and vtterlie to take away iudgementes. Neither is that Paules meaning in the second Chapter to the Romans: but he onelie sheweth, that they sinne most gréeuouslie, which with a great seueritie punish others, & ouerslip themselues. Doubtlesse they ought first to correct and amend themselues. Neuerthelesse Paul biddeth them not to forsake the office committed vnto the~. They vse also for this purpose to cite the saying of Christ, vnto them which accused the adulterous woman: ¹⁰⁷ He which amongest you is without sinne, let him cast the first stone at her. And yet this sentence of Christ is not against iust punishmentes, and lawfull iudgementes. Neither commaunded he them that they should not procéede in accusing of the woman, whome they had taken in adulterie. He himselfe was no Magistrate, but the most high preacher of God. Wherefore that which was his office to doe, he executed, in perswading those hypocrites to repentance. And he would first haue had them prouide, that by a liuelie faith and repentance they should first haue ridde themselues from the sinnes whereunto they were bound. Neither forbad he but that they should execute that which the lawe of Moses commaunded. He sawe that these wicked men in these punishmentes, were infected with two manner of faultes. First in asmuch as the punishment and paine, which their neighbour was put vnto, was pleasant vnto them: For by accusing him before the Magistrates and Iudges, they priuilie fulfilled vppon him their hatred and enmities. An other fault was their hypocrisie: for that when as they themselues otherwise abstained not from the selfesame wicked actes, yet by accusing of offenders, they made a shewe, as though they had bin zealous of the lawe. These thinges Christ endeuored to correct. He condemned not the woman because he was no politicall Magistrate. He accused her not to the Magistrates because he found her not in adulterie. Wherefore, forasmuch as he was not a méet witnesse, he was not bound by the lawe to prosecute such an accusation. But that which pertained to his function, he left not vndone, sith he admonished her, that she should afterward abstaine from sinne. Likewise, ¹⁰⁸ when we sée anie wicked act doone by our neighbours, God requireth not that we should not iudge of it according to the nature thereof. For, Woe be vnto vs (as the Prophet saith) if we shall call euill, good. ¹⁰⁹ That which is euill ought to be iudged according as it is. Neither ought we, either to suspend our iudgementes, or to turne away our eyes from those thinges which are in verie déede euill. But if we shall féele our selues to be infected in like manner with the selfesame fault: let vs descend into our selues, and with a due chastisement reprooue our selues. And thereby shall it come to passe, that we our selues being by repentance corrected, may the more fitlie and fruitfullie admonish our brother when he sinneth. Neither against this is that sentence in the 7. of Matthew: Iudge not, and ye shall not be iudged: ¹¹⁰ Because in that place is not intreated of the taking away of brotherlie admonition: but onelie the curiositie of the vngodlie is there reprooued, who when themselues abound in all manner of sinnes, doe most diligentlie search out the sinnes of other men, not to the intent they would amend them, but because they delight themselues in the multitude of sinners, and thinke that by fellowship their offence is lightned. The godlie are not infected with this curiositie: as they which continuallie haue their eyes fired vppon their owne sinnes, and daylie reuoltings: so that they haue no leasure to co~sider of other mens faultes, vnlesse they be offered vnto them. Moreouer they reioyce not, neither delight themselues in the condemnation of their neighbours: especiallie that condemnation which is rashlie doone. For they knowe that their brother, which pertaines vnto God, ¹¹¹ either standeth or falleth to his owne Maister. But we intreate now of priuate men, and not of Magistrates or Pastors: whose part is by office to be inquisitiue, touching the life and manners of those which be committed to their charge. Wherefore all men aswell subiectes as Magistrates ought to iudge sinnes which be layde before them, by admonishing and punishing euerie man according to his calling, least vices doe spread farre abroad.

VVhether it be lavvfull to release iust punishments which are inioyned by lavves.

¹¹² 23 Of this question there be many Arguments on both parts. For first kings are stirred vp vnto clemencie, which woulde bée doone in vaine vnlesse they might forgiue. Also Dauid forgaue seditious men, ¹¹³ and sware vnto Semei, that he woulde not punish him. And Paul commendeth Onesimus, ¹¹⁴ a fugitiue seruant, vnto his Maister Philemon & prayeth him to forgiue him his fault. And the vse was among Christian Emperours that in the wéeke before Easter, ¹¹⁵ when the memorie of Christ his death was celebrated, the prisons were set at large. And amo~g the Iewes the custome was, ¹¹⁶ that in Easter some one condemned man should be set at libertie by the chiefe Ruler. Also Augustine made intercession oftentimes for the Donatistes and Circumcellions, which had not onely troubled Religion, but also had doone iniurie to the life and goods of the Christians. Further we reade that it was decréed among them of olde time, that if a guiltie person had fled vnto Churches, he should be without harme. And hereof Chrysostome maketh mention in his Oration against Gainas.

24 Also there want not firme Arguments on the contrarie part. ¹¹⁷ For first, it séemeth that a godly worke shoulde not be hindred: and it is a godly worke to punish the guiltie, séeing it profiteth the Common weale, and taketh awaie sinnes. Moreouer by this meanes the office of Princes is hindered. For they beare the sword: which if they vse not when time and cause requireth, they doe not their duetie. Besides: he that releaseth punishments giueth of anothers and not of his own, sith iudgement is the right of God, as it is written in the first Chapter of Deuteronomie. And in the second of Paralip. the 19. ¹¹⁸ Chapter Iosaphat saieth: Exercise iudgement, not onely for man but as it were for God. And the punishments of the lawe can not be taken awaie vnlesse it be by him that appointed them. But God appointed the punishments for sinnes. Wherefore no man shoulde diminish or take them awaie. But that God appointed the punishment of death for grieuous sinnes, it appeareth out of the 18. Chapter of Deuteronomie, where it is thus written, ¹¹⁹ that the people desired that God himselfe would not speake vnto them, because they might not abide so great a Maiestie: and for that they chose rather to heare Moses to be the interpretour: that GOD heard these prayers of the people, and promised not onely that he woulde giue Moses vnto them, but also woulde prouide that no Prophet should at any time be wanting vnto them. A Prophet (saieth he) will I raise vp vnto you from among your owne brethren. But he addeth: If any man will not heare that Prophet, I will make inquisition against him. Howbeit this place prooueth not, that that punishment was the punishment of death. More certaine is the other place in the 17. Chapter of Deuteronomie: If (saieth God) there shall happen a difficult case, ¹²⁰ yee shall goe vp to the high Priest or vnto a Leuite: and he that shall not heare the voyce of the Leuite or high Priest, or of the Iudge, shal die the death. But that was for changing the state of the Common weale. Samuels counsell was demaunded as concerning that matter, and he was not onely a Prophet but also a iudge; they gaue not eare vnto him therfore they were worthie of death. In déed, GOD might haue forgiuen them, but the Prince could not. Furthermore there is a waie opened vnto mischiefes, when men promise to themselues, that either through grace or rewarde they shall escape vnpunished. This also may bee prooued out of the histories. God commaunded that all the Amalachites should be slaine, Saul spared Agag their King: ¹²¹ he was grieuously reprooued by Samuel, because this was not lawfull for him to doe. ¹²² And when the king of Israel had spared Benhadad the king of Syria, who~ God had commanded to be slaine: ¹²³ Thy soule (saieth the Prophet) shall be for his soule. In déede the Prince hath power of life and of death. But yet, as he may not punish him that is innocent, so must he not let him escape that is guiltie. Yea and the Lord saith: Thou shalt take awaie the murtherer from my Altar, and shalt put him to death. ¹²⁴ Finally, if this should be permitted vnto Princes, iudgements of death would be solde, and the execution of Iustice should be at pleasure of the Magistrate. Thus haue we Arguments on both parts. ¹²⁵

25 But here must we consider, that some lawes there be humane, and other some diuine. And it belongeth much to the state of this question, whether sort they be. For humane lawes, because they procéed of a weake reason, are neuer perfect: neither can they comprehend all things, or foresée all chaunces and circumstances. ¹²⁶ Wherefore oftentimes, if we shoulde seuerely and sharpely vrge the wordes of the lawe, many vniust things would be decréed. And so, there is oftentimes néede of moderation, ¹²⁷ and interpretation, and correction of the lawe. And moderation is the bridle and rule of humane lawes, when wee consider not so much the wordes themselues, as the counsell & minde of the writer. Furthermore, Lawiers may interprete mens lawes if they séeme doubtfull, eyther by other lawes, or by examples of former iudgements, or by the ordinance and custome of the Citie: or else according to iustice and saftie of the Common weale: but to correct or change, or to mitigate a lawe, is not any priuate mans part, but the office of the Prince alone, who made the Lawe. Wherefore Augustine in his Booke De vera Religione, A Iudge (saieth he) ought not to iudge of the lawe, but according to the lawe: otherwise all things would be bought. The same thing we haue in the Pandectes, De legibus & Senatus Consultis. But nowe can we not say that the lawes of God are vnperfect so as they containe not all things. For the minde of God is infinite and most perfect. Doubtlesse it is the part of wise men and diuines diligently to weigh and examine the lawes of God and to expound some places by other places, ¹²⁸ to consider the decrée and order which the Lord hath made, to discusse things that séeme to be repugnant, and to iudge of two lawes, ¹²⁹ when both of them cannot bée kept, whether is to be preferred before the other. For example: The lawe is that the Sabaoth day must be kept holy: there is another lawe that the Citie must be defended: it so falleth out sometime, that vnlesse wée fight on the Sabaoth day, the Citie cannot be defended. Here the better lawe must bée kept, namely, that the safetie of the Citie be defended. ¹³⁰ For God saith: I will haue mercie, not Sacrifice. And Christ answereth: that it is lawfull to doe good on the Sabaoth daie. ¹³¹ The Lawe of God is, ¹³² that we must obey our Parents. Another lawe is, that we must obey God: the Parentes commaund something, which is against the lawe of GOD: héere the better lawe must be kept: to wit, that we obey God. This is lawfull for vs in the lawe of God. But to abrogate or correct, or by moderation to diminish, and put awaie the lawe of God, is by no meanes lawfull for vs. Wherefore let Pigghius take héede what moderation it is by which he teacheth vs that we should vnderstand the first precept: Thou shalt loue the Lorde thy God with all thy heart, with all thy soule, &c. ¹³³ For séeing this cannot be, he saieth, that the wordes of the lawe must be mitigated by a fit interpretation. ¹³⁴ Christ gaue and instituted his Supper, and commaunded that the same should be ministred in both kindes. But the Romane Antichrist saieth: that many chances may happen by reason of beardes, of diseases, of shedding of the bloud: therefore the Cup must be plucked from the laitie. God in the holy assemblie would haue all things to bee ministered in the vulgar and knowne tongue. Neuerthelesse these men say, ¹³⁵ that their mysteries must not be rashly prophaned: There is no necessitie that the people should vnderstand all things: These things must be committed onelie to the learned and wise. But who hath taught these men this moderation in the lawe of God? The Iewes vsed onelie the lawes of God, therefore the Princes might not mitigate them by interpretations, but humane lawes they may, because they be inacted by them.

26 Furthermore some commandements forbid a thing to be doone, others commaund or (as the Schoolemen speake: ¹³⁶ ) Some bée affirmatiue, others bee negatiue. Those lawes which forbid or denie any thing, doe euermore holde. As for example: wée are bound at all times that we shall not steale: that we shall not commit adulterie, &c. But those which commaund any thing, although that they also haue great strength, yet doe they not perpetuallie binde. If any shal giue vs a blowe vpon the right chéeke, ¹³⁷ wee are commaunded to offer vnto him the left. Assuredly wee ought alwayes to haue a minde readie so to doe: howbeit we are not bounde at all times, and towardes all men thus to doe: For this Christ himselfe did not, but being striken, aunswered: If I haue spoken euil, ¹³⁸ beare witnesse of the euill. And Paule: God (saieth he) shall strike thee thou painted wall. We must thus doe when eyther the glorie of God or the saluation of him that hath striken shall séeme to require it. God commaundeth that we shoulde come together to the holie congregation, to celebrate the Sacraments and to giue Almes. Yet doeth he not commaunde that we shoulde alwaies doe these things. But to what purpose is all this? ¹³⁹ namely hereunto: God commaundeth if any man shall not obey the Iudge or the high Priest, that he be slaine. This lawe in verie déede bindeth the Magistrate, yet not alwayes, but when it may be doone: ¹⁴⁰ and sometime it happeneth that it cannot be. Neuerthelesse if thou punish not when it may bée, thou offendest the lawe of God. Moreouer we must take héede, that the greater good be not hindred by the lesser. Ioab was an euill man and a murtherer, and worthie to bée slaine by Dauid. But when Dauid sawe that he was able to do much with the armie, ¹⁴¹ least any trouble and sedition shoulde arise, hée woulde not laie holde of him. And it may be that he spared Semei for the selfe same cause. ¹⁴² In like maner Saul, least any trouble or sedition should arise, or least that the election should be disturbed, woulde not at that time kill the rebels. For otherwise he might not haue forgiuen them those punishmentes which were appointed by God. Nay rather he coulde not by sacrifices haue purged a sinne which had bin doone with a stretched out hand and of set purpose.

¹⁴³ 27 Now let vs make answere to the Arguments which are woont to bee obiected: whereas they say, that Princes are often stirred vp vnto clemencie, it behooueth to vnderstande what is the nature of clemencie. And this maie easily be vnderstood by the contrarie. Cruell is he which in punishing excéedeth measure, through a certaine crueltie of the minde, and is not mooued at the miseries of men. ¹⁴⁴ On the contrarie part he is mercifull which cannot abide to execute punishments but releaseth them, and that through a gentlenesse of the minde. And I adde: Through a gentlenesse of the minde: for if he be led by reward or fauour or necessitie to release punishments, he is not mercifull. This vertue (as saieth Seneca, ) doeth chiefelie belong vnto Princes, and them which beare rule. For kings, are therefore called pitifull and mercifull, not because they be so, but for that they ought to be so. But priuate men which haue no publike power of punishing, maie forgiue manie things, yea and oftentimes also ought: howbeit they shoulde not bee called mercifull, but gentle. And we ought to knowe, that clemencie doeth diminish punishments, not rashly nor by chaunce: not after a mans own pleasure, but by a right reason. And I call reason, not mans iudgement by it selfe, but that which is framed according to the word of God. For if punishments be released vnaduisedly or at a mans owne pleasure, nowe can it not be a vertue, for it doeth violate iustice. And vertue is a certaine forme of right reason. Clemencie doeth make the lawe somewhat to yéelde. But seueritie is by no meanes turned. And sometime the one is to be vsed and sometime the other. If there happen an outragious cause, seueritie must bee vsed, not clemencie. Sometime the cause is made the lighter by circumstances: then there is place for clemencie. Doubtlesse clemencie, although it bend the common lawe, yet doeth it nothing against right reason. Séeing it hath a consideration of the Circumstances, and according to that it appointeth punishments. And when the mercifull man remitteth any part of the punishment, this ⟨…⟩ée iudgeth that he whom he forgiueth, ought not to suffer any more. For he respecteth not the wordes, but the meaning and purpose of the lawe. Neuerthelesse when the punishment due is altogether remitted, it is no clemencie but pardon, and that is to be hoped for from God alone. Which the Iewes also vnderstoode when they said: ¹⁴⁵ Who is this that forgiueth sinnes? Yet doe the Papists bragge, that they and theirs can giue a pardon of sinnes. But thou wilt say: If so the case stand: then might other princes vse clemencie, but the Iewes might not, because they vsed the lawes of God. I answere, ¹⁴⁶ that they also might be mercifull, yet not otherwise, than where no certaine punishment was prescribed by the lawe of God. In Leuiticus and in Deuteronomie it is commaunded, That weights should be iust, and measures right. He that had doone otherwise, was to be punished, yet no certaine punishment was appointed. Wherefore in that case there was place for the clemencie and seueritie of the Iudge. Another lawe there was, ¹⁴⁷ that he which had deserued to be beaten with s⟨…⟩aues, should be punished with no more but fourtie stripes. In this case it was in the power of the iudge, that the partie should be punished with fewe or manie stripes within that number. ¹⁴⁸ There was another lawe that the seruant which had solde himselfe into the power of another man, shoulde be grieuouslie punished. But if his Maister had oppressed him with violence, there was no punishment determined by the lawes. Herein also was place for the clemencie of the Iudge. Wherefore not in vaine was clemencie often repeated vnto the Princes of the Iewes. For it was lawfull to vse the same both in the humane lawes set foorth by them, as I haue said, and in the diuine lawes, so farre foorth as punishments were not prescribed by the lawes.

28 And as touching the clemencie of Augustus Caesar, I aunswere, ¹⁴⁹ that that lawe which we haue, Ad legem Iuliam maiestatis, was humane. For by what punishment conspirators must be afflicted, it was decréed by princes, and so that lawe might be mitigated by him. He iudged it would be sufficient, if he had gréeuouslie rebuked Cinna: And assuredlie we reade in that historie, that he was greatlie vexed: and therefore he iudged it better, to remit somewhat of the punishment. But how small a portion must be remitted, ¹⁵⁰ iust moderation dooth declare. But humane lawes, when they followe the prescript of nature, must be accounted the lawes of God: As to put a murtherer to death. Herein must nothing be remitted by the Iudge. Doubtlesse, Clemencie is an habite wherewith by the gentlenesse of the minde we mitigate legal punishmentes within the limites of Iustice. ¹⁵¹ Dauid forgaue Semei: I graunt, but yet when he perceiued that it was not lawfull that he should goe vnpunished, he commaunded Salomon that he should not suffer his gray hayres to escape vnpunished vnto the graue: Neuerthelesse, it was not expedient for Dauid himselfe to kill him. For first Semei being of the familie of Saul, he might séeme to be mooued with hatred against his posteritie. Further he had confirmed his words of whom he had béene called before, a bloudie man. Lastlie it was not méete for him to disturbe that gladnesse and gratulation of the people. After this sort he forgaue Ioab, ¹⁵² who had killed two better men. For he sawe that he was able to doe much with the armie: Wherefore he also remitted him vnto Salomon. Howbeit it cannot be denyed, but that Dauid sinned, both when he absolued Amnon of Incest, and Absolon of parricide. But what Dauid refused to doe, that did God himselfe afterward by himselfe. ¹⁵³ For Amnon was slayne by Absolon, and Absolon being hanged on a trée, was thrust through by Ioab with a speare. And whereas Paul commendeth Onesimus vnto his Maister Philemon, ¹⁵⁴ that serueth not much to the purpose. For Philemon was a priuate man, and here was no prescribed lawe of God, onelie Paul prayeth him to forgiue priuate iniurie, which is a common thing vnto all Christians. He prayeth (I say) Philemon to let passe his wrath. And that he dooth not against the lawe of God, but according to the same. ¹⁵⁵ For in Deuteronomium, there is a lawe, If an other mans seruant shal flye vnto thee, thou shalt not restore him to his Maister, which must be vnderstoode: so long as his Maister is in a rage and vnpatientlie disquieted. This was profitable to the Maister least he should ouermuch féede his wrath: and vnto the seruant, least he should be ouermuch punished,

¹⁵⁶ 29 But the fact of the Romans, in that at the feast of Easter they released vnto the Iewes some man that was bound and condemned, we cannot alowe. ¹⁵⁷ For God neuer commaunded, that in their solemnities any guiltie man should be released. Howbeit, the Romans by this meanes curried fauour with the Iewes, to the intent they might the more easilie beare that seruitude. ¹⁵⁸ The selfesame reason it was why Christian princes in the holy wéeke [of Easter] would open the prisons, and let foorth guiltie men: insomuch, that they were not verie skilful in the lawes of God. For if they had bin bound for debt, they had forgiuen not their owne but other mens. Againe, if for hainous offences, this had bin to open a windowe vnto mischiefe. But princes cannot easilie hold the meane. And in like case, as they will haue the Ministers of the word either to be poore wretches, or else after a sort to be princes and Gods, so doe they either punish the guiltie together with the innocent (as Theodosius did) or else they so spare all men, that nothing is administred seuerelie. And as touching Augustine, in déede I graunt that he intreated for the Donatistes: yet he denyed it not to be lawful for Magistrates to punish Hereticks. But when the Circumcellions or idle persons became cruel against the Christians, and that the Church was constrained to call for the helpe of princes, and that now these idle persons were punished, the Church séemed to be cruell and to prosecute her owne iniuries. Howbeit Augustine desireth not that they should be wholy forgiuen, but onelie that their bloud might not be shed. Yet howsoeuer it were, ¹⁵⁹ y e example of Augustine ought not to preiudice anie mans opinion, sith we liue by lawes, not by examples. At this day if a man had killed a Minister, or doone a robbery, who would intreate for him? But there was a refuge vnto the churches for such as were guiltie. Admit it were so, and we also doe not take away sanctuaries, for God permitted them. For if the cause be obscure, they may better be there than in prison while the same be knowen. Neuerthelesse the cause being manifest, God himselfe commaunded, that the wicked man should be taken from the verie altar and be slayne. These be the thinges which mooue me to thinke, that it is not lawfull for a prince to forgiue the punishment of offenders. And assuredlie the wise men haue alwayes held that commonweale to be well ordered: where verie few thinges are left to the power of the Iudges. But fewe such thinges had the Commonwealth of the Israelites. Yet had it some. That which was defined by the lawes, ¹⁶⁰ was in no wise to be remitted. Let not thine eye (saith God) spare thine owne wife that sleepeth in thy bosome.

What is the office of a king in promotion of godlynesse, looke the Epistles 18. and 36. at the end of this booke.

Of Executioners or Hangmen.

¹⁶¹ 30 Moreouer Gideon did for this cause perhappes, driue his sonne to slay the kings, that he might inflame his heart from tender yeares, against the enemies of Gods people, as it is written of Hanniball, who from a childe, vowed himselfe against the Romans. Or else he did it, to learn him from his youth to obay the lawe of God: ¹⁶² wherein was commanded that the bloud of the next of the kin being shed, should be reuenged. But might not this haue bin committed to an executioner? Why would he so vrge his sonne? To this we may aunswere two wayes: First that in the olde time it was not dishonourable to slay the guiltie. ¹⁶³ Further that it cannot be perceiued, that the auncient Hebrewes had executioners. And that this for a certaintie was no office among the Hebrewes, that which is writte~ in the lawe testifieth: namelie that a blasphemour being taken, ¹⁶⁴ was so stoned to death, as the hand of the witnesses did throwe the first stone at him: neither was putting to death committed to anie particular executioner. And there are manie examples which testifie that it was not ignominious to slaie the guiltie. ¹⁶⁵ Saul, when he would haue the priestes slayne, did not call executioners to doe it, but turned to the noble men which were with him, and commaunded them to assaile the Priestes: Who reuerencing their Ministerie, and dignite, durst not obay. Onelie Doeg the Edomite, was bolde to execute so horrible an acte, who was not of the least estimation with the king. ¹⁶⁶ Also Samuel with his owne hand slewe king Agag the prisoner. In like manner, Ioab when he had caught hold of the horne of the Altar, ¹⁶⁷ was slaine of Banaia the chiefe captaine of the hoste. Wherefore it séemeth that the Hebrewes in those auncient times had no executioners. But as much as may be gathered by the Historie of the Ethnickes, the officers of punishmentes, called Lictores, ¹⁶⁸ beganne at Rome vnder Romulus, who (as Plutarch writeth in the life of Romulus ) were called so, either of Ligando, that is, of binding, or else because the Gretians called them ⟨…⟩, or ⟨…⟩, for that they executed a publike office. Romulus gaue them roddes bound together to carrie, and with them was ioyned an Axe. They had also cordes therewith to binde the Citizens, who being bound, they might either beate them with roddes, or strike them with the Axe. But the men of more auncient time wanted this office: euerie man executed the same, according as it was commanded of the Magistrate without anie infamie vnto him. And in verie déede, that worke of punishing malefactors hath in it no dishonestie or vncomelinesse. For if it be honest for a Iudge or Prince to giue sentence of death against euill doers, why then shall it not be iust and honest to execute the same sentence? Yea and God himselfe in punishing, vseth not onelie euill spirites, but good spirites.

31 But thou wilt say: ¹⁶⁹ why are officers of punishment and executioners commonlie so euill spoken of? First because the common people are greatlie afraid of them: Neither would anie man be punished for his wicked factes. Hereby it commeth, that the sight of the Executioner, driueth a certaine horror into them. And that the people were so affected, the maner of the publike weale of Rome declareth, where, when ambitious men flattered the people more than was méete, they banished the executioner from the iudgement place, from the sight of men, and from the chiefe house in Rome, as euen the Oration of Cicero for Rabirius dooth testifie. ¹⁷⁰ The Citizens of Rome were not beaten with roddes, nor put to death. Their extremest punishment, was banishment. They were caried into Ilandes, and at the length condemned to the Mines. But the latter Roman lawes, which are in the Digests, did quite disanull this exemption. For in verie deede, it was vniust: For a fault woorthie of death ought not to be winked at, whatsoeuer Citizen of Rome were Author of it. And there were two principall lawes, whereby the back and the head of the Citizens were prouided for, ¹⁷¹ I meane the lawe Portia and Sempronia, whose power and protection Paul (as we haue it in the Actes) vsed, and by that meanes escaped both roddes, and bondes. This is one cause why the officers of punishment and executioners are so odious.

32 An other cause hereof is the papisticall opinion of irregularitie, ¹⁷² which (as the Canonistes will haue it) is gathered of euerie manslaughter. These men thinke, that a man cannot so iustlie kill anie man, but that the same will let him from being promoted to the holy Ministerie, whereas neuerthelesse y e Inquisitors of heretical leawdnesse (as they call it,) doe dailie cause an infinite number, and those innocentes, to be killed. The Popes Legates also in gouerning of Cities and prouinces and making of warres, although they be Cardinals, and Byshops, doe still continuallie cause bloud to be shed. But in the meane time with great hypocrisie they prouide that the sentence be giuen by a lay Iudge (as they call him,) and so they wrappe themselues out of that irregularitie. Howbeit the holy scriptures doe not so teach. ¹⁷³ Moses said vnto the Leuites, which with him had killed so many: Ye haue consecrated your handes: So farre was it off, that they should be depriued of the holy Ministerie. ¹⁷⁴ But thou saiest that Dauid was in old time forbidden to build the Temple for his shedding of bloud. But in this place we must marke the mysterie wherein Salomo~ shadowed Christ the peaceable king. Séeing by him he was expressed, who without weapons hath gathered together the Church, being the true Temple of God, vnto the true & euerlasting peace. ¹⁷⁵ Neuerthelesse bloud being iustlie and rightlie shed debarreth not from the holie Ministerie. For Phinces who held the high Priestes office, thrust through two most vnpure whoremongers. Elias, a man of the stocke of the Leuites, slewe with his owne hand the Prophets of Baal. And Samuel a man of the same Tribe, did himselfe kill Agag the king, and yet neither of them both were reiected from their office. Neither doe I therefore speake these thinges to commend the promoting of Men-killers vnto holy orders: but this onelie I oppugne, that euerie slaughter and euerie mankilling maketh not a man so irregular (as these men say) that he cannot be ordayned a Minister of y e Church. What if a man haue bin a Iudge or Magistrate, or in iust warre hath fought for his countrie: ca~not he straightway therefore be ordained a Minister of the Church? Peraduenture he hath obtained excellent giftes of God, and is indued with singular learning, adorned with a pure life, instructed with dexteritie of gouernment and with godly eloquence: cannot the Church (as these men most absurdly thinke,) vse his giftes? Certainlie that was not obserued in Ambrose: He was seruant vnto Caesar, and decided matters in the lawe, being Pretor of Millaine: And yet was he suddenlie taken perforce to be a Byshop. I know that Paul requireth that a Byshop be no striker, ¹⁷⁶ yet no man doubteth but that this must be vnderstood of an vniust slaughter or violence. But what should a man here doe? All thinges are by the Papistes handled superstitiouslie.

33 Finally, the third cause why officers of punishment and executioners are euill spoken of, is this, because verie many of them liue wickedly and dishonestly, and haue before time bin naughtie men. Howbeit the office doth not dishonest the~: but they rather by their fault pollute an excellent office. ¹⁷⁷ Aristotle in his 6. Booke of Politickes the last Chapter saieth, that good men abhorre this kinde of office: namely, of punishing of men, because it hath an hatred annexed vnto it. For they oftentimes incurre the hatred of men. Howbeit in my iudgement, a good and godly man ought not for that cause to mislike of his office. ¹⁷⁸ I remember an answere of Chrysippus, who being demaunded, why he exercised not the office of a Magistrate: If I exercise it not rightly (saide he) I shall displease God: and yet if I doe it rightly, I shall displease men: but I will neither of both. Vnto some he séemed to haue answered verie prudently, but me thinketh he answered foolishly. For he shoulde rather haue answered contrarie; that the publike weale ought to be gouerned and that rightlie, to please both God and good men. Doubtlesse a wise and good man should haue no respect vnto wicked men. By these things it is nowe manifestlie shewed that Gideon, in that he by himselfe killed the Kings of Madian, committed nothing that was vnfit for him: neither that he commaunded his sonne to doe a dishonest act.

Of Sanctuaries called Asyla.

34 But because it is written that Adonias caught holde on the hornes of the Altar, ¹⁷⁹ and the verie like also is read of Ioab, therefore it séemeth good to intreate somewhat of Sanctuaries: wherein is graunted a libertie to them which flie thither for refuge. They call a Sanctuarie a holie thing or place, ¹⁸⁰ from whence it is not lawfull to draw any man by violence. If wée giue credite to Seruius the Grammarian, vpon the 8. Booke of Aeneids, the Nowne is deriued from α a Particle of depriuing, and ⟨…⟩, that is, to draw, and by an ill pronunciation ⟨…⟩ is changed into λ: or else of the verbe ⟨…⟩, that is, to take awaie. As Homer vseth it [in these words:] ⟨…⟩, that is, drawing goodly Armour. Howsoeuer the name is deriued, we will not much striue. But yet this I will not passe ouer, that hereof commeth the worde ⟨…⟩, that expresseth the right which they inioy that flie vnto Altars, Images, & Temples. Whereupon is vaunted that saying, ⟨…⟩: that is, They that fled into the Temple of Theseus had the right of Sanctuarie. Certainely, the Temple and the Image they called ⟨…⟩. Pollux saieth, that the common cryers or Heraldes at Armes were ⟨…⟩, that is to saie, safe men, so that where soeuer they were, they should be kept inuiolate. Plutarche saieth in his Problemes of the Tribune of the people: They made him both holie and also ⟨…⟩, that is, inuiolate, neither was it lawful for any man to lay hands vpon them.

¹⁸¹ 35 But the beginning of Sanctuaries they affirme to be by the Nephewes of Hercules. For when he was departed out of the world, they feared the violence and disquietnesse of them whom their Grandfather had afflicted. Wherefore at Athens, they builded the Temple of mercie: and they caused a decrée to be made, that they which fled thither for succour, might not be pulled awaie from thence. Thereof doeth Statius make mention, saying: The fame is, that the Nephewes of Hercules builded an habitation, &c. Liuius writeth, that Romulus and Remus, after Rome was built, opened a Sanctuarie betwéene the Castle and the Capitol, in that place which was called Intermontius. So manie as came thither, though they were wicked men, obtained fréedome from punishment. Vnto what God that place was consecrate, it is doubted. There be some which think it was dedicated vnto Veiouis, but Dionysius Halicarnassaeus fréely confesseth y t he doeth not knowe. ¹⁸² Augustine De Concordia Euangelistarum the 1. Booke and 12. Chapter, condemneth this Act of Romulus and Remus, in respect that they for the aduauncement and increase of the Citie which they had builded, should graunt impunitie to wicked men, and those armed against their own Countrie, whose lawes they feared: and thereby for a reward of flying awaie obtained impunitie. We deale not (saieth he) by this example in the Church of Christ: wherin doubtlesse is giuen a securitie vnto sinners and penitent persons. So then Sanctuaries haue bin in sundrie places, to wit, in Asia, in Greece, in Egypt. At Rome it was decreed afterward, that the Images of the Emperours should be sanctuaries. Wherefore Philostratus saith: ¹⁸³ The Sanctuarie of the Image of Tiberius. Furthermore such an immunitie was translated vnto the temples of Christians, vnto Abbeis and Monasteries. For when Princes had dedicated their name vnto Christ, they gaue vnto holy houses those priuiledges which sometimes had belonged to Idolatrous Temples and Idols, because they thought that Sanctuaries bee so necessarie a thing vnto the societie of men, as without them the Common weale might not consist. Then séeing it behooued to haue those, they committed that honour vnto Churches. ¹⁸⁴ But if antiquitie of time should be sought foorth, we must rather goe vnto Moses than vnto the Nephewes of Hercules. For Moses was of more auncient time than they. He doubtlesse in manie places of his lawes, hath made mention of Cities of refuge. And in Exodus the 21. ¹⁸⁵ Chapter he commaunded in the name of God that manslayers, which willingly and of set purpose had slaine anie man, should be plucked from the verie Altar. But if any man had vnwittingly and vnwillingly slaine a man, he promised to giue them Cities of refuge, which in the 25. ¹⁸⁶ Chapter of Numbers he perfourmed, when as now the Israelites had occupied the kingdomes of Og, and Seon, and had giuen them to the Tribe of Gad, Ruben, and to the halfe tribe of Manasses. Moreouer thrée Sanctuaries were there appointed, to wit: one in the Tribe of Gad, another in the Tribe of Ruben, and the thirde in the halfe Tribe of Manasses. Whereof in like maner, there is plaine mention made in the fourth Chapter of Deuteronomie. Further, ¹⁸⁷ when they were past ouer Iordan, other thrée sanctuaries were opened by Iosua: ¹⁸⁸ that is to wit, in the Tribe of Naphthali, Iuda, and Ephraim. But in those they obtained not impunitie except such as by chau~ce and vnwittingly had killed a man. The Cities were called Hamiclat, because they to whom such a thing had happened, did gather and assemble there together. For the verbe Calat signifieth to drawe together and to drawe to. Whether the Sanctuaries of the Ethnicks had a prescribed time, wherein they flying thither might there remaine, it appeareth not to mée. Howbeit I thinke they were to remaine there, vntill matters were taken vp betwéene the parties. ¹⁸⁹ But the Sanctuaries of Moses prescribed that it should not be lawfull for such as fled thither, to returne home, vnlesse it were at the death of the high Priest. Which ordinaunce (no doubt) was mysticall. For thereby was shadowed, that our returne into the heauenly countrie happeneth to vs by no other meanes than by the death of Christ.

36 Now let vs recite the causes for which y e vse of sanctuaries hath bin thought profitable: and on the otherside, ¹⁹⁰ the harmes and impediments of them. For those things being knowen, we shall perceiue, whether it be profitable that Sanctuaries should be open in our times. Verie manie causes of the commoditie of them are reckoned, ¹⁹¹ and those no slight causes. First it commeth sometime to passe that the cause is doubtfull, and that the interpretours of lawes, doe followe rigour more than is méete, and he that is in the state of iudgement sometimes perceiueth that the Iudge is angrie with them, and that his aduersarie is verie mightie. Héereuppon the guiltie man feareth, least that either by the wrath of the Iudge, or by the power of the aduersarie he should be oppressed, and so it is better that he should lie secrete for a time, vntill mens mindes bee appeased, and the lawes somewhat more gentlie interpreted: that if it should be otherwise doone, the guiltie man might straightwaie be apprehended and rid out of his life, vpon no verie iust causes. ¹⁹² Furthermore, seruaunts by that ordinaunce found a great commoditie. For Masters which had bought the~, did otherwhiles rage most cruellie against them: So that when they perceiued them to be kindled with wrath against them, they fled vnto Sanctuaries, and there called for the helpe of Magistrates. The cause was inquired of, and a Caueat of immunitie being put in, they were reconciled vnto their Maisters. Or if a maister had bin founde ouer cruel or of vnchast life, who would indeuour to constraine his bondman or maideseruaunt vnto dishonest things, he was constrained to sell his bondseruaunts, and so he lost not the value but the dominion ouer them. And those were not accounted fugitiue seruants, as we reade in the Digestes, De Edicto Edilitio, in the law Fugitiuus. ¹⁹³ Moreouer, Sanctuaries were profitable in the time of warre: for when a Citie was to be taken, and that there appeared no aide: those that were besieged, did flie vnto the Temples, and that did no small deale profite the Romanes, when the Citie was taken forceably by Alaricus; sith all those which fled vnto the Temples of Peter and Paule were saued. ¹⁹⁴ Moreouer the commoditie is manifest, which is gathered out of the lawes of Moses as touching manslaughter comming by chaunce. The cause might not straightwaie bee tried: therefore it rested that it might be knowen, & that the Iudges might decrée, whether the homicide were wilfull or whether it were committed by chaunce. But if so be that Cities of refuge had not bin giuen, the daunger was least the reuenger of bloud, to wit, the next of kin vnto him that was dead should slaie y e mankiller before the cause were lawfully knowe~. Yea and some also bee farre in other mens debt and haue not wherewith to pay. ¹⁹⁵ And some lawes be verie straite, and decrée: that where he hath not to pay in money, he should bide punishment in bodie. Wherefore, they cast those poore wretches into bonds and prisons. So that it is profitable to haue a sanctuarie, to the intent the matter may be moderately agréed vpon by certaine conditions. I will not forget that in the time of Basill it happened (as Gregorius Nazianzenus reporteth thereof in his funerall Oration) that a headruler of Valence the Emperour, ¹⁹⁶ had an associate who loued inordinately a certaine noble woman, and was desirous to marrie her: but she refused. The ruler assisted his associate. Whereupon violence was prepared to be doone vnto the afflicted woman: and therefore she fled vnto y e Church. Basill protected her by right of Sanctuarie which was graunted to Churches and Altars. Princes hauing a respect vnto these commodities, not onely graunted these priuiledges vnto Churches, but they also prouided by lawes, that whosoeuer shoulde violently drawe awaie any from thence, they should incurre the crime of Treason, as wée haue it in the Code De ijs qui confugiunt ad Ecclesias, in the lawe Fideli. Wherefore they held this for a crime of death. But on y e other side there followed thereof manie harmes and discommodities, which I thinke good in like maner to rehearse.

37 Thereby it commeth oftentimes to passe, ¹⁹⁷ that Maisters be despised by their seruaunts, if they vpon hope to escape punishment doe flie vnto Sanctuaries, & there remaine many daies, in which time their maisters without doubt are constrained to be destitute of the dueties and necessarie seruice of them. Herewithall thou maiest adde, that men doe then more fréelie sinne, if they haue Sanctuaries readie whereunto they maie flie. This did Tiberius Caesar prudently perceiue, who, as Suetonius and Tacitus report, being displeased at so great a libertie, tooke awaie the priuiledges from all sanctuaries. It was come to passe (as Plutarche saieth in his Problemes ) that the Priest of Iupiter stoode before the gates of the Temple, and they which came and fell downe at his féete should be out of daunger, and if they had bin bound, they were straightwaie loosed. After the which maner also, many temples of the Papistes at this day become dens of theeues. For they which be indebted, by kéeping of themselues there, be nothing carefull to satisfie their Creditors, they shunne labour, and behaue themselues ill in such Sanctuaries. There happeneth another mischiefe, that they which are come thither and their cause knowen, are founde wicked men, and doe escape by the helpe of the Moonkes and Priestes: and by this meanes grieuous crimes are left vnpunished. Yea and the Commonwealth it selfe is oftentimes by the like maners troubled: to wit, when as in such Sanctuaries those that be guiltie of treason be defended: ¹⁹⁸ as Adonias who hurt the commonweale, and by reason of the Altar remained without harme.

38 That immunitie in such kinde of crimes was graunted vnto those which fled to the Church, Socrates testifieth in the fifth Booke and 6. Chapter of his historie, where he sheweth that Eutropius one of the noble men of Arcadia, desired verie much to be reuenged of them which fled vnto the Church. And séeing that was not lawfull for him by the law, he wrested a decrée from the Emperour, whereby the right of Sanctuarie of the Church, was abrogated. But within a while after it happened that the same Eutropius himselfe with certaine men of his, incurred the indignation of Caesar. Wherefore least he shoulde be apprehended, he went to the Church, which thing did not profite him. Against the same man, Chrysostome inueighed in a Sermon, saying, that the Church could not defend him who tooke awaie the priuiledge thereof. And because Iustinian saw that the same so large and ample immunitie did hurt the Commonweale, therefore he restrained the same, as we may sée in the Authenticks, in the Title De Mandatis Principum, the Paragraphe Quod si delinquentes, where he excepteth homicides, adulterers, and those which rauish virgins. For he writeth vnto his lieftenaunt, that he shoulde in any wise punish such, and shoulde not suffer them to inioy any priuiledges of Sanctuarie. This lawe being otherwise firme and of good authoritie hath the Bishops lawe disabled. ¹⁹⁹ For in the Decretalles De Immunitate Ecclesiae, in the Chapter Inter alia, Innocentius the thirde wrote vnto the King of Scots: Let none bée taken awaie from the Church though he haue committed grieuous faultes. Further he decréed that they which haue betaken themselues to the Churches, if they be afterward deliuered, cannot any more in respect of that crime, bee punished with corporall paine, but onely by some other ciuill punishments. And before that the rulers of the Church doe render them, let them receiue an assuraunce from the Magistrates that they doe not put them to death.

39 But least they might séeme to giue too much libertie, they excepted thrée cases. First they will not haue common théeues to be defended, who lie in waite vppon the highwayes. Secondlie, Robbers by the night, which spoyle the fieldes. Thirdlie they which commit haynous offences in the Churches or the Churchyardes, being animated vppon hope that they shall there be without harme. For such are not protected by the Church, séeing they doe gréeuouslie sinne against the Church. This is decréed in the decretals, De Immunitate Ecclesiae in the lawe Immunitatem. And as touching seruantes, they decréed, that if they shall flie vnto the Church being armed, they shall not be receaued. That also we haue in the Code De ijs qui confugiunt ad Ecclesiam, in the law, Si Seruus. Howbeit if young men goe thither and séeke aduocates in the Church, they are receaued: their Maisters are called, who assuring them of impunitie, take them into their handes againe. But other faultes although they be grieuous, as murthers, rauishing of virgins, and adulteries, they defend: as it is in the decrees 36. quest. 1. in the Canon De raptoribus. And that immunitie they giue not onelie vnto Christians, but also vnto Iewes, so that they dissemble not: So doe they in like manner vnto Ethnickes, and also vnto men excommunicate, and vnto heretickes. But they make a difference after this manner: If an heretick come into perill for other faultes, he is defended: but if for heresie it selfe, he inioyeth not sanctuarie. Furthermore this libertie is not only graunted vnto the Church, ²⁰⁰ but also vnto a Byshops house, although it be not ioyned to the Church. Which thing is in the decrees. 17. quest. 4. in the Canon Id constituimus. As much priuiledge also they graunt to their breade~ God, ²⁰¹ when it is caried about either in pompe, or vnto the sicke. For then, if they take hold by the priest, they haue sanctuarie. Neuerthelesse, they which liue in a sanctuarie, and haue obtained priuiledge, may there deale with their aduersaries. But if they owe anie thing, and be indebted to the common treasure, the Canonistes in that case decree that it is lawfull for Iudges to cite that man before the Church doore: if he will satisfie, it is well, if not, they procéede to the possession of his goods, which afterward they sell, and withhold, vntill all the debt be discharged. But if so be they owe not vnto the commo~ treasure, but to other men, they haue respit giuen them for thirtie dayes, wherein they may goe foorth & séeke some Patron. But if sentence be pronounced against them, they are constrained either to stand to the iudgement, or else to returne to the sanctuarie.

40 Also in the time of warre they will, that the rite of sanctuarie shall be of force, to the intent that they which flie vnto the tempels may not be killed by the enemies: vnlesse perhappes they make the Temple their hold, and doe fight from thence. Verie many such like thinges they haue which verie often doe turne to great wickednesse. But yet they themselues doe iudge, that this immunitie must by all meanes be retained. And in déede some of the fathers, and some Councels doe séeme to be on their side. Of Basil and Chrysostome, we haue alreadie spoken before. Augustine in his 1. booke De ciuitate Dei, the 7. Chapter, compareth the sanctuarie of the Empire of Romulus with the Temples of the Citie of Rome: in which in the time of Alaricus a barbarous king the Christias had immunitie. For when he had taken the Citie of Rome by force, he would haue them all to be safe, which fled for succour vnto the Temple of Peter and Paul. Romulus (saith he) opened a sanctuarie, to increase the number of Citizens: Alaricus to preserue a multitude of his enemies, which is more to be praysed. And in the same booke the 4. Chapter he saith that the sanctuaries of Christians were of farre greater power than those of the Ethnickes. And againe, he vseth the example alreadie alleaged. And he added, that the Christian sanctuaries were able to defend the Romans being now Captiues: but the sanctuarie of Iuno, which was at Troye, was not able to defend the Troyans from the Gréekes: As Virgil vttered in the secod booke of his Aeneidos:

The Temples great were spoyld, and Iunoes holy doores were brast,

Both Phoenix and Vlisses false, with them their traine about:

The pray did keepe, and Greekes to them the Troyan riches brought.

Yea moreouer it is said that the same Alaricus restored much of the golde which was taken out of the Vatican. When Boniface the Earle, which vnder the Romans gouerned Africa, had taken one by force out of the Church of Augustine, Augustine in his 187. Epistle to the same Boniface writeth, that he woondred verie much that he plucked a man from them, and he willed him safelie to restore the partie, with all conuenient spéede. And he addeth, that he commaunded his Cleargie men, that they should not take anie offeringes out of his house, and that he had now excommunicated him. This also we haue in the decrees 17. quest. 4. in the Cano~, Miror. And in the 188. Epistle, the same Earle made a verie lowlie aunswere vnto Augustine, whome he verie much loued, acknowledging that he had gréeuouslie sinned. Behold (saith he) I now restore the man whome I tooke away: yet let it be knowen to thee, that he is most woorthie of death. Wherefore we sée that gréeuous offences in the Church, had defence in right of the sanctuarie. In like manner the Councels greatlie fauored sanctuaries. The Councell of Arausicanum, Chapt. the 5. decréed that none should be plucked away from the Church. The 4. Councell of Aurelianensis, Chapt. the 21. not onelie commaunded that this rite should be retained by the Byshops, but will haue them to be excommunicated, which shal neglect to doe it. The 12. Councel of Toletanus, Chapter the 10. giueth for sanctuaries xxx. paces about Churches which be of the lesser sort. But vnto the Metropolitans it giueth fortie. The Councels of Ilerdenum, & Triburiensis, decréed in a manner the same thinges.

41 What shall we then iudge? ²⁰² Must sanctuaries be retained, or abrogated? I forasmuch as I perceiue that the lawe of God retained sanctuaries, but yet of verie straite libertie, and doe sée also that the lawes of Nations instituted them: and that otherwhiles there may be iust causes of them, therefore I would determin that they ought to be retained, ²⁰³ certaine cautions being obserued. First, that no priuate or publike thinges be hurt by that libertie. Secondlie, that no iniuries be doone to anie man, or else vices nourished and maintained through the hope of pardon and impunitie. Further, it séemes that we ought to take héede, that they be not open vnto all kinde of crimes, but that they be graunted for some certaine men: as when one man hath killed an other, neither wittinglie, nor willinglie. Or else, if a good man without his owne fault by the iniurie of fortune, shal be burdened with debt, or in such like thinges. But to graunt sanctuaries for all crimes, it is farre fro~ godlinesse. Againe, it were good to be decréed, that they should not be manie and much frequented, that men may behaue themselues the more circumspectlie and grauelie in their daungerous actions. ²⁰⁴ The olde lawe had onelie sixe in the whole kingdome of Israell. But in our Regions there be alwayes manie. For the Canonistes haue maruelouslie indeuored to inlarge that libertie. Notwithstanding it should be the part of a good magistrate to restraine the number of them. Also it ought to be prouided that they which be detained in sanctuaries, when by iudgement they be found guiltie might not easilie scape away: And that y e priestes or Monkes if they make a way for them to escape, should vndergoe certaine punishmentes. ²⁰⁵ Howbeit it is come to passe that they themselues also are Sanctuaries, as being men that haue extorted and vsurped sundrie formes of exemption.

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← 66. The thirteenth Chapter. Of a · Contents · 68. The fifteenth Chapter. Of Exile or →

Footnotes

1. In 2. Sam. 8. 15. That Princes must flie from idlenesse. ↩

2. A similitude ↩

3. Iustinian. ↩

4. In al Acts the obiect is before the science. ↩

5. How iustice is to be ministred. ↩

6. 2. Sam. 8. 15
   ↩

7. Pro. 16. 12. ↩

8. The parts of right iudgement. ↩

9. In 1. Sam. 28. 3. Whether it be lawfull for a King to decrée as touching Religion. Deu. 18. ve. 10. 11. & 12 ↩

10. Two obiections. ↩

11. 2. Par. 26. ver. 19. 2. Sam. 6. 7
    ↩

12. Two great lights fayned in the Church by the papists. ↩

13. The office of a Magistrate. ↩

14. Rom. 13. 1. Chrysost. ↩

15. 2. Par. 26. ver. 19.
    ↩
16. 2. Sam. 6. 7.
    ↩
17. 2. Sam. 8. 16
    ↩

18. By whom Dauid ruled the Co~ mon weale. ↩

19. 1. Par. 11. 6.
    ↩

20. Two families contended for the priesthoods. ↩

21. In 2. Sam. 8 ↩

22. Dauid heaped vp gold for the building of the Temple. ↩

23. The care of the Church belongeth to Princes. ↩

24. In 1. kings. 20. ver. 31. That clemencie is méete for Princes. ↩

25. That Princes are Gods Vicars vpon the earth. ↩

26. Verse. 28. ↩

27. Cicero. ↩

28. Clemencie must be vsed in time and place. A definition of Clemencie. ↩

29. 1. kings. 20. 32. 1. Sam. 15. 9
    ↩

30. In 1. kings. 20. at the end. ↩

31. Amos. 1. & 2. ↩

32. Psal. 137. 8. ↩

33. Reasons of Augustine for the forgiuing of offenders. ↩

34. Matt. 5. 45. ↩

35. Rom. 2. 4. ↩

36. Matt. 5. 44. ↩

37. Iohn. 8. 11. ↩

38. Matt. 1. 19. ↩

39. Howe the repentance of the guiltie might be prouided for. ↩

40. 1. Kings. 20. ver. 23. The sending away of Benhadad was vnlike to that which Augustine vrged.
    ↩

41. The arguments of Macedonius against Augustine. ↩

42. Iames. 2. 13 ↩

43. Eze. 18. 32. ↩

44. A consideration of the reasons of Augustine and Macedonius. ↩

45. They which be stirred vp with lusts, cannot be compared to the phrentike m⟨…⟩n. ↩

46. To the first reason of Augustine. ↩

47. To the second. ↩

48. Ver. 1. &c. ↩

49. To the third ↩

50. Purgatorie ouerthrowen by a reason of Augustine. ↩

51. To the fourth. ↩

52. Rom. 2. 4. ↩

53. To the fifth. ↩

54. Matt. 5. 44. ↩

55. Matt. 1⟨…⟩. ver. 17. ↩

56. To the A⟨…⟩t. ↩

57. To the 8. ↩

58. Iohn. 8. 11 To the 9. ↩

59. Matt. 1. 19. To the 10. ↩

60. Tsedec for clemencie or mercie. ↩

61. Deu. 22. 23. Ib. ver. 28. ↩

62. To the 11. ↩

63. To the 12. ↩

64. To the 13. ↩

65. To the 14. ↩

66. Ver. 17. ↩

67. To the 15. ↩

68. Iame. 2. 13. ↩

69. A place of Magistrates expounded. ↩

70. Eze. 18. 32. ↩

71. What we are to decrée as touching this matter. ↩

72. He must not sue vnto rulers, to let the guiltie passe vnpunished. ↩

73. Testimonies for iudging of the controuersie. ↩

74. Gen. 9. 6. ↩

75. Leui. 19. 20 ↩

76. Deut. 13. 5. ↩

77. Ex⟨…⟩d. 21. ver. 12. 13. & 14. ↩

78. Rom. 13. 4. ↩

79. In 2. Sam. 3 at the end. ↩

80. Basil. ↩

81. Arguments by which the fact of Dauid is defended. ↩

82. 1. Sa. 11. 12
    ↩
83. 2. Sa. 17. 10.
    ↩

84. A kinde of Donatists. ↩

85. Arguments by which the fact of Dauid is disallowed. ↩

86. Deu. 17. 18. ↩

87. Exo. 21. 12. ↩

88. Verse. 21. ↩

89. Rom. 43. 3. ↩

90. Verse. 17. ↩

91. Eccle. 7. 6. ↩

92. 1. kings. 20. ver. 42.
    ↩
93. 1. Sam. 3. 13
    ↩

94. Certaine obiections. ↩

95. Causes for the which punishme~ts may be differred. ↩

96. Why punishment is sometime forgiuen & sometime increased. ↩

97. 2. Sam. 4. 6.
    ↩
98. 2. Sa. 13. 14 2. Sam. 29.
    ↩

99. Dauid delt otherwise towards others. 2. Sa. 1. 15. ↩

100. 2. Sam. 4. 9.
     ↩
101. 2. Sa. 20. 9. 2. Sa. 1. 15.
     ↩

102. A confutation of the reasons made on Dauids part. ↩

103. An argument from figures, not alwayes ⟨…⟩i⟨…⟩ne. ↩

104. Mat. 25. 41. ↩

105. Whether Dauid in this matter was guided by the holie Ghost. ↩

106. In Rom. 2. Whether a Iudge may iudge another in that crime whereof himselfe is guiltie. ↩

107. Iohn. 8. 7. The place of Iohn of the adulteresse. ↩

108. What we are to doe when we see any faults of our neighbour. ↩

109. Esa. 5. 20. ↩

110. Matt. 7. 1. How that saying, Iudge not, &c must be vnderstood. ↩

111. Rom. 14. 4⟨…⟩ ↩

112. In 1. Sam. 11. ver. 13. ↩

113. 2. Sam. 19. ver. 23.
     ↩

114. Phil. 9. ↩

115. That punishments may be released. ↩

116. Mat. 27. 15. ↩

117. That it is not lawfull to forgiue iust punishments. ↩

118. Deut. 1. 17. 2. Par. 19. 6. ↩

119. Verse. 16. ↩

120. Verse. 8. ↩

121. 1 Sa. 15. 2. Ib. ver. 9. ↩

122. Ib. ver. 14. ↩

123. 1. kings. 20. 35.
     ↩

124. Deu. 19. 12. ↩

125. An answere vnto the question proposed. ↩

126. Why the rigor of the Law must not be followed. ↩

127. An interpretation of humane lawes is néedefull. ↩

128. The interpretation of the diuine Lawes, by whom and how. ↩

129. A comparing together of diuine lawes. Exo. 20. 11. ↩

130. Osee. 6. 7. ↩

131. Luke. 6. 9. ↩

132. Exo. 20. 12. ↩

133. Deut. 6. 5. ↩

134. Matt. 26. ver. 26. ↩

135. 1. Cor. 14. 1
     ↩

136. Precepts affirmatiue & negatiue. ↩

137. Matt. 5. 39. ↩

138. Ioh. 18. 23. Acts. 23. 5. ↩

139. Deut. 17. 9. How farre foorth the precept that co~mandeth to punish, doth binde. ↩

140. Somewhat otherwise in the 15. and 18. Articles. Compare with them and with the 25 & 26. following. 2. Sa. 3. 27. ↩

141. 2. Sa. 20. 9.
     ↩
142. 2. Sam. 19. ver. 23. 1. Sa. 11. 13.
     ↩

143. An answere to the arguments of the aduersaries. ↩

144. Who is mercifull. Look before Art. 1. ↩

145. Mark. 2. 20 ↩

146. How farre forth the Iewes might vse clemencie. Leui. 19. 35 Deu. 25. 13 ↩

147. Deut. 25. 2. ↩

148. Exo. 20. 2⟨…⟩. ↩

149. An example of Augustus Caesar. ↩

150. ⟨…⟩. ↩

151. An example of Dauid. 2. Sa. 19. 22. ↩

152. 1. kings. 2. 31.
     ↩
153. 2. Sa. 13. 29. 2. Sa. 18. 9.
     ↩

154. Phil. 9. An example of Paul. ↩

155. Deu. 23. 15 ↩

156. Mat. 27. 15. ↩

157. An example of the Romanes. ↩

158. An example of the Christian Princes. ↩

159. The example of Augustine. ↩

160. Deut. 13. 8. ↩

161. In Iud. 8. ver. 10. Why Gideon stirred vp his son to kill the enemies. ↩

162. Deut. 19. 17 ↩

163. The Hebrewes had no executioners. ↩

164. Deut. 13 9. & 17. 7. ↩

165. 1. Sam. 22. ver. 17.
     ↩
166. 1. Sa. 15. 33.
     ↩
167. 1. Kings. 2. 34.
     ↩

168. Plutarch. ↩

169. Why the officers of execution haue commonlie ill report. ↩

170. The Citizens of Rome were not put to death for any crime. ↩

171. The Lawe Portia and Sempronia Acts. 22. 25 ↩

172. The irregularitie of the Canonists. ↩

173. Exo. 32. 29. ↩

174. 1. Par. 22. 8.
     ↩

175. Bloud rightly shed debarreth not from the holie ministerie. Num. 25. 7 1. kings. 18. 40. ↩

176. 1. Tim. 3. 3.
     ↩

177. Aristotle. ↩

178. The aunswere of Chrysippus. ↩

179. In 1. kings. 1. ver. 50. ↩

180. What thing a Sanctuarie is, and whereof it is so called. ↩

181. The originall of Sanctuaries. ↩

182. Augustine ↩

183. The kindes of Sanctuaries. ↩

184. The originall of sanctuaries must be sought fro~ Moses. ↩

185. Verse. 14. ↩

186. Num. 35. 1. ↩

187. Verse. 14. ↩

188. Iosua. 20. 7. ↩

189. Numb. 35. 28. ↩

190. The causes of Sanctuaries. ↩

191. The first cause. ↩

192. The second cause. ↩

193. The third cause. ↩

194. The fourth cause. Num. 35. 1. Deut. 19 2. ↩

195. The fift cause. ↩

196. The sixt cause. ↩

197. What euils Sanctuarie causeth. ↩

198. 1. kings. 1. 51.
     ↩

199. What importunitie the Papisticall Sanctuaries doe graunt. ↩

200. A Bishops house had the power of Sanctuarie. ↩

201. When the Priest was in steed of a Sanctuarie ↩

202. Whether it be expedient to haue Sanctuaries. ↩

203. With these cautions they may be had. ↩

204. Numb. 35. 13. ↩

205. ⟨…⟩. ↩