REVENGEMENT AND PUNISHMENT: WHETHER
IT BE LAWFUL FOR A MAGISTRATE TO KILL
THE GUILTY: WHEREFORE, WHEN, HOW,
AND WHAT THE MAGISTRATE MUST
PUNISH: WHETHER HE MAY
PUNISH OFFENDERS IN
RELIGION OR NO.
MINISTER OF THE CHURCH OF ZURICH.
TRANSLATED BY H.I.
THE SECOND DECADE.
THE EIGHTH SERMON.
I SPAKE yesterday, dearly beloved, of the magistrate's ordinance: there are yet behind other two parts of his office and duty, that is, judgment and punishment; of both which, by the help of God, I mean to speak as briefly as may be. Give ye attentive ear, and pray ye to the Lord to give me grace to speak the truth.
Judgment is taken in divers significations; but in this present treatise it importeth the sentence of judges brought in betwixt men at variance; which sentence is derived out of the laws, according to right and equity, as the case put forth of the parties required, and is pronounced to the intent to take up the strife betwixt them at variance, and to give to every man his own. For at sessions or assizes parties appear and sue one another for some inheritance or possession, which either party affirmeth to be his by law, laying for themselves whatsoever they can to prove and shew what right and title they have to the thing. All which the judges do diligently hear and perfectly note; then they confer the one with the other, and lay them with the law; lastly, they pronounce sentence, whereby they give the possession to the one party, and take it from the other. The like reason is also in other cases and matters. And this is judgment; yea, this, I say, is the execution of justice. But this kind of quieting and setting parties at one is very mild in comparison of revengement and punishment, which is not executed with words and sentences, but with swords and bitter stripes. And good cause why it should be so, since there be divers causes, whereof some cannot be ended but with the sword, and some more gently with judgment in words. But herein consisteth the health and safeguard of the kingdom or commonweal.
Judgment and punishment therefore are in the magistrate the most excellent offices, although peradventure they seem to be somewhat hard and cruel. But unless this which seemeth to be cruelty be put in use, all ages, states, and sexes shall feel the smart of crueller things, and that which is most cruel indeed. For it is not cruelty, but rather just severity, which (as the Lord commandeth) is put in use for the safeguard of the guiltless and preservation of peace within the realm and commonweal. Put case there were a commonweal well furnished with most absolute laws for politic manners and matters of religion: suppose also, that in the same commonweal there were no magistrate to execute, and as it were to father those laws, by his authority to bring and reduce all the deeds and sayings of men to the trial of those laws; and that therefore every man breaketh forth to what kind of life he list himself, and doth what he will: tell me, I pray you, what good do those written laws to the men of that country? Believe me, forsooth, not one halfpenny worth of good. The best part therefore of the magistrate's duty consisteth in upright judgment and punishing revengement. And those two points require a man of courage and princely stomach; whom the Lord in his law describeth lively, and telleth what kind of man he would have him to be, and what the office is whereto he is called: which description I will rehearse and expound, because therein the judge's person is chiefly touched.
Moses, at the Lord's commandment, saith to the judges: "Hear the cause of your brethren, and judge righteously betwixt every man and his brother, and the stranger that is with him. Ye shall have no respect of any person in judgment, but ye shall hear the small as well as the great: ye shall not fear the face of any man, for the judgment is the Lord's" [Deut. 1.16,17.] The holy prophet in these words toucheth two things chiefly: he declareth what the judge's office is; and what vices or diseases do infect the judge, that he cannot fulfill his office as he ought to do.
Now touching the office of a good judge, the first point thereof is, that he repel no man, but hear every one, the small, the great, the citizen, the stranger, the known and unknown. And he must hear the parties willingly, diligently, and attentively. Herein there is admitted no sluggishness of the judge, nor a mind busied about other matters. Judgment before the matter be decided is utterly excluded, because it carrieth away the mind of the judge before the matter is known. The thing itself crieth out, that the matter must first be heard and well understood, before the magistrate proceed to judgment. And the common proverb saith, "Let the other party be heard too." Very wisely said that judge, which told one that made a complaint, "That with the one ear he heard him, and kept the other ear for him upon whom the complaint was made."1 Herein we contain the perfect knowledge of the judge, and say, that he must not make too much haste in cases unknown, since he must judge them by the thing itself, and not by the parties, secret tales, and privy accusations. Secondarily, let him judge, saith he, yea, let him judge uprightly. To judge is to determine and pronounce truly and justly, according to the laws, what is good, what is evil, what is right, and what is wrong. We Switzers say, Urteilen, oder erteilen, oder richten; as if one should say, to distinguish a thing throughly considered, and to plane and make straight a crooked thing. Parties blinded with affections make straight things crooked, which the judge by applying the rule of equity and law doth straighten again; so that to judge is to straighten and to make plain. Moreover, to judge is, by defending and punishing, to keep in liberty. The magistrate doth judge, therefore, when he defendeth the innocent, and bridleth the hurtful person. But he must judge justly, that is, according to justice, and agreeably to the laws, which give to every man that that is his. The judge doth judge unjustly, when of a corrupt mind he pronounceth sentence contrary to all law and equity.
Now therefore we have to consider the vices which usually are wont to reign in judges. The vices that are in judges be many, and the diseases of their minds are sundry: but two special diseases there are, and chief of all the rest. The one of these two vices, which so infecteth the minds of judges that they cannot execute their office as they should, is the accepting of faces, or respect of persons; that is, when the judge in giving judgment hath not his eye set upon the things themselves, or upon the causes or the circumstances of the causes as they are indeed; but hath a regard either of dignity, excellency, humility, poverty, kindred, men of honours, letters, or some such like stuff. The Lord excludeth this evil, and saith: "Ye shall judge justly; ye shall have no respect of any person in judgment; ye shall hear the small as well as the great." The other disease of these twain is fear; a very vehement affection of the mind, which disturbeth the very best and most excellent counsels, and choaketh up virtue before it come to light. Under fear we do contain hope also, I mean, of commodity; and so by that means by fear we understand the corruption of bribes. The judge that stands in fear to lose his life or goods, or is afraid to displease a nobleman, or is loath to lose the common people's good will; he also that taketh bribes, or is in hope to be rewarded at one of the parties' hands, doth pervert equity and advance iniquity. The Lord saith therefore, Ye shall not fear any mortal man: ye shall not look for any reward at any man's hand. He addeth the reason why: Because the matter is not yours, neither were ye called in to do your own business; but the judgment is the Lord's. The will and law of God therefore must be respected. For God is able to defend just judges from the unjust hatred of any, whatsoever they be, and against all wrong and open violence. Moreover, where it is said that the judgment is the Lord's, thereby are the judges warned that they ought to imitate the example of the most high God. But what, and of what sort, that example of God is, the same Moses, in the first of Deuteronomy [see chap. 10.17-19.], expresseth and saith: "God doth accept neither person nor gift; he doth justice for the fatherless and widow, and loveth the stranger to give him meat and clothing; and therefore shall ye love the stranger." And so must godly judges do in the judgment which is God's. Josaphat, without all doubt a very godly prince, speaking to them whom he had made judges, did say: "Take heed what ye do; for ye execute not the judgments of man, but of God, which is with you in judgment, Let therefore the fear of the Lord be upon you, and take heed, and be diligent. For there is no unrighteousness with the Lord our God, that he should have any respect of persons, or take any reward."
To these I will yet add a few places of the holy scripture more, which shall partly make manifest those that went before, and partly expound and more plainly express the office of the judge. In Deuteronomy we read: "The judges shall judge the people with equity and justice. Thou shalt not pervert judgment, nor have respect of persons, nor take a reward: for a reward doth blind the eyes of the wise, and perverteth the words of the righteous. Thou shalt do judgment with justice, that thou mayest live and possess the land." [Deut. 16.18-20.] Again, in Exodus we find: "Thou shalt not follow a multitude to do evil, neither shalt thou speak in a matter of justice according to the greater number for to pervert judgment. Neither shalt thou esteem a poor man in his cause. Keep thee far from false matters, and the innocent and righteous see thou slay not; for I will not justify the wicked. Thou shalt take no rewards, for rewards blind the seeing, and pervert the words of the righteous." [Exod. 23.] In Leviticus also we have this: "Ye shall do no unrighteousness in judgment; thou shalt not favour the person of the poor, nor honour the mighty, but in righteousness shalt thou judge thy neighbour." Again: "Ye shall do no unrighteousness in judgment, in meteyard, in weight, or in measure. True balances, true weights, a true epha, and a true hin, shall ye have. I am the Lord your God," &c. [Levit. 19.] I suppose verily, and am thus persuaded, that in these few words of the Lord our God are comprehended all that which profound philosophers and lawyers of great learning do scarcely absolve in infinite books and volumes of many leaves. Beside all this, the most holy prophet Jeremy crieth to the king, and saith: "Keep equity and righteousness, deliver the oppressed from the power of the violent; do not grieve nor oppress the stranger, the fatherless, or the widow, and shed no innocent blood." [Jer. 22.] Thus much touching the office of judges.
But in the eyes of some men this our discourse may seem vain and fruitless; unless we do also refute their objections, whereby they endeavour to prove, that pleadings and law-matters are at an end, because the Lord in the gospel saith: "To him that will sue thee at the law and take away thy coat, let him have thy cloke also." And again: "While thou art yet with thine adversary upon the way, agree with him quickly, lest he deliver thee to the tormenter." [Matt. 5.40,25.] They add, moreover, the strifes in the law, which Paul the apostle, in the sixth chapter of his Epistle to the Corinthians, doth flatly condemn. To all which objections mine answer is this: As the doctrine of the evangelists and apostles doth not abrogate the private ordering of particular houses, so doth it not condemn or disannul the public government of commonweals. The Lord, in the gospel after Luke, chideth with and repelleth the young man who desired him to speak to his brother for an equal division of the inheritance betwixt them. He blamed him, not for because he thinketh ill of him that claimeth an equal division, or that part of the inheritance that is his by right; but because he thought that it was not his duty, but the judges' office, to deal in such cases. The words of our Saviour in that place are these: "Who hath appointed me a judge between you, and a divider of land and inheritance?" [Luke 12.14.] And again, as we read in the gospel, "If any man will sue thee at the law, and take away thy coat, give him thy cloke also;" so, on the other side, against this doing of injury there is nothing more busily handled and required in all the evangelical doctrine than charity and well-doing: but a good deed is done in nothing more than in judgment and justice. Since, therefore, that judgment was invented for the practicing and preserving of justice and upright dealing, it is manifest, that to judge in matters of controversy is not forbidden in the gospel. The notable prophets of the Lord, Esay and Zachary, cry out, and say; "Cease to do evil, learn to do good; seek after judgment, help the oppressed, and plead the cause of the fatherless and widow." [Isai. 1.] "Execute true judgment, shew mercy and lovingkindness every man to his brother. Do the widow, the fatherless, the stranger, and poor, no wrong." [Zech. 7.] They sin, therefore, that go on to hinder judgment, and to thrust judges beside their seats; for, as they pull away from the true God no small part of his worship, so do they open a wide gate to wrong, robbery, and oppression of the poor.
The Lord, I grant, commanded that which our adversaries have alleged; meaning thereby to settle quietness among his people: but because the malice of men is invincible, and the long-suffering of seely [meek] souls makes wicked knaves more mischievous, therefore the Lord hath not forbidden nor condemned the moderate use of judgments in law. Moreover, we read in the Acts of the Apostles, that Paul did oftener than once use the benefit of judgment, not for money or goods, but for his life, which he endeavoured to save and defend from them that lay in wait to kill him. Neither consented he to the unjust judgment of Festus, the president, but appealed to Cæsar [Acts 25.11.]: and yet we know, that Paul did not offend therein against the doctrine of the gospel of Christ. The same Paul, in his Epistle to the Corinthians, did not absolutely condemn the Corinthians for going to law about things belonging to their living; but because they sued and troubled one another before heathen judges. It is good and seemly, without doubt, to suffer wrong with a patient mind; but, because it pleaseth the Lord to ordain judgment to be a mean of help and succour to them that are oppressed with injury, he sinneth not at all that seeks to keep himself from wrong, not by private revengement, but by the upright sentence of judges in law. And therefore did the apostle command the Corinthians to choose out to themselves among the faithful such judges as might take up temporal matters in controversy betwixt them that fell at variance.
Thus have I declared unto you the second part of the magistrate's office, which consisteth in judgment. I will now therefore descend to the exposition of the third and last part, which comprehendeth revengement and punishment. For the magistrate, by his office, beareth the sword; and therefore is he commanded by God to take revengement for the wrong done to the good, and to punish the evil. For the sword is God's vengeance, or instrument, wherewith he strikes the stroke to revenge himself upon his enemies for the injury done unto him; and is in the scripture generally taken for vengeance and punishment. The Lord in Jeremy crieth out, and saith: "I call a sword upon all the dwellers upon earth" [Jer. 25.29.] Again, in Ezechiel: "The sword is sharp and ready trimmed to kill the sacrifice." And again: "I will give my sword into the hands of the king of Babel." [Ezel. 21.9; 30.24.] The kings of Egypt were of their people called Pharaos, as who should say, Revengers. But the sword in the magistrate's hand is to be put unto two uses: for either he punisheth offenders therewith for doing other men injury, and for other ill deeds; or else he doth in war therewith repel the violence of foreign enemies abroad, or repress the rebellions of seditions and contentious citizens at home.
But here again another objection is cast in our way by them which say that, according to the doctrine of the gospel, no man ought either to kill or to be killed, because the Lord hath said, "Resist not the evil;" [Matt. 5.39.] and again to Peter: "Put up thy sword into thy sheath. Every one that taketh the sword doth perish by the sword." [Matt. 26.52.] My answer to this is: that throughout all the scripture private revengement is utterly forbidden; but that that is done openly by authority of the public magistrate is never found fault withal. But that was private and extraordinary vengeance that the apostle Peter was about to have taken, considering that he was called to be a preacher of the word of God, not to be a judge, a captain, or a man of war. And against private and extraordinary revengement is that sentence rightly pronounced: "Every one that taketh the sword shall perish by the sword."
But that public vengeance and the ordinary use of the sword is not prohibited by God in the church of Christ, I prove by this testimony of the holy apostle. Paul in the twelfth to the Romans hath taught what and how much the perfectness of the gospel requireth of us, and among the rest thus he saith: "Dearly beloved, revenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine, and I will repay." But because this might be argued against, and this objection cast in his way, Then, by this means, the long-suffering of Christians shall minister matter enough to murder and manslaughter; he doth therefore immediately after in the next chapter add: "The magistrate is the minister of God to thy wealth, to terrify the evil doers. For he beareth not the sword in vain: for he is God's minister, revenger of wrath to him that doeth evil." We gather therefore by this doctrine of the apostle, that every one of us must let God alone with taking of vengeance, and that no man is allowed to revenge himself by his own private authority. But public revengement, wrought by the ordinary magistrate, is nowhere forbidden. For that God which said to us, "Vengeance is mine, I will repay," doth grant to the magistrate authority to exercise and put that vengeance in use, which he doth claim as due to himself: so that the magistrate's duty is to punish with the sword the wrongful dealings of wicked men, in the name and at the commandment of God himself. Therefore, when the magistrate punisheth, then doth God himself, to whom all vengeance belongeth, punish by the magistrate, who for that cause is called by the name of God. Moreover, it is written: "Thou shalt not suffer a witch to live." [Exod. 22.18.] Again: "A wise king will scatter the wicked, and turn the wheel upon them." [Prov. 20.26.] And again: "He that justifieth the wicked, and he that condemneth the just, they are both abominable in the sight of the Lord." [Prov. 17.15.]
Neither do we lack examples to prove, that some have incurred the heavy wrath and displeasure of the Lord for their foolish pity in sparing them whom the Lord commanded to strike with the sword. I speak of Saul and Ahab. [1 Sam. 15; 1 Kings 20.] Again, on the other side, there are innumerable examples of most excellent princes, which testify and bear witness of the praise that they deserved for punishing of lewd and wicked offenders. For the prince sinneth not, nor is blame-worthy any whit at all, which killeth or otherwise punisheth the guilty and ungracious man: and for that cause we find in the law so often repeated, "His blood be upon himself." But if the blood of the guilty be not shed, then that is imputed as a fault, and laid to the magistrate's charge; because he, neglecting his office, hath pardoned them that were not worthy to be forgiven, and by letting them go hath left the innocent unrevenged. For he is made partaker of the injury done, and shedding of the innocent's blood, which he leaveth unrevenged, by letting the murderer go untouched, on whose neck the Lord gave charge to let the sword fall. The just severity of the upright magistrate in punishing naughty men is not (as it is falsely judged) extreme cruelty. But overthwart and peevish pity, that spareth offenders which are not worthy to live among men, is utter and mere cruelty indeed. For when the magistrate letteth them go unpunished and at ease, which with their naughty deeds have deserved death, he doth thereby, first of all, give occasion and courage to like offenders to go on and increase in their mischievous wickedness: for they see their own faults borne withal in other men. Secondarily, the men that are not as yet altogether drowned in the mire of wickedness, but are every hour tempted and provoked to naughtiness, will at the last leave to have scruple of conscience, and give their consent to yield to mischief: for they see that mischievous merchants are gently dealt withal. Lastly, offenders set free without any punishment do for the most part become little better: yea, they become twice worse than they were before; and the increase of his sin shall at length compel thee to kill him for many murders, whom thou wouldest not kill for the murder of one, whereby thou mightest have saved many guiltless men whom that cutthroat, since his first pardon, hath villainously slain. They therefore send wolves and bears among the common people, that let such rakehells [nebulones nefarios, Lat.] escape unpunished.
Since, now, that I have declared the right use of the sword, and proved that the magistrate hath power to revenge men's injuries, and to kill heinous offenders; let us go on to consider what the causes be for which God commandeth to punish transgressors; let us see, also, when they ought to be punished; and lastly, what kinds of punishment or penalties the magistrate must use.
The especial causes, for which the Lord doth openly command to punish offenders, are for the most part these that follow. The Lord resisteth force with force, and worketh the safeguard and salvation of men; he revengeth them that suffer wrong, and restoreth again whatsoever may be restored. He declareth his justice also, which rewardeth every one according to his deeds; and therefore he wipeth out reproachful deeds with a reproachful death. He putteth offenders in mind of their crime, and therewithal, for the most part, doth give them sense of repentance unto salvation. For if the wicked do acknowledge his fault, and repent himself of his ill deed, and believe in Christ with all his heart, his sin is forgiven him and he is saved: as we have an evident example in the thief that was crucified [Luke 23.], whose punishment was an occasion of his salvation; but from the other this salvation was far off, because he did not believe in Christ, and would not be warned by the pain that he felt for his offence to repent for his sins, and to call to God for mercy. Furthermore, by public judgment and open execution all other men may take example to learn to beware of like offences, unless they will suffer like horror of torments.
But let not the magistrate execute any man until he know first perfectly, whether he that is to be punished hath deserved that punishment that the judges determine; and whether God hath commanded to punish that offence, that is, whether by God's law that is condemned, which is to be punished. The truth thereof shall be manifestly known, either by the proper and free confession of the man accused, or by the probable testimonies brought in and gathered against the defendant, or by conferring the laws with the offences of him that is to be punished. So then the magistrate may not punish virtue, true religion, nor good, honest, and godly men: for he is ordained of God to terrify, not the good, but offenders.
Now, touching the manner and fashion of punishment, I think it not best over curiously to dispute. Let every nation or city retain still their penalties and order of punishing, unless peradventure their country-custom smack somewhat of rigour and extreme cruelty. For no wise man denieth but that the kind of punishment must be tempered according to the rule of justice and equity. The kinds of punishment are exile or banishment, bondage,2 loss of goods, imprisonment and fetters, scourges, marks with burning irons, loss of limbs, and, lastly, death itself, by killing with the sword, by burning, hanging, drowning, and other such means as every nation useth of custom. Neither is the scripture without a pitiful beadrow [catalog] of miserable torments. For in the book of Esdras we read: "And whosoever will not do the law of thy God, (Esdras), and the law of the king, let judgment straightways pass upon him, whether it be to death, or banishment, or loss of goods, or imprisonment." [Ezra 7.26.] This do I add not unadvisedly, because of them that are of opinion that such torments ought not so much as once to be named among christian people.
But measure and discretion must be used of the judges in punishing offenders, so that heinous faults may be plagued with grievous punishment, lesser crimes may be nipped with smaller penalties, and the smallest and light offences punished more lightly. That sentence in God's law ought to be remembered, "According to the fault, so shall the punishment be" [Deut. 25.2. Vulgate]: where also the judge must have a consideration of his clemency and pity. Oftentimes the kind and age excuseth the party accused. The circumstances, being rightly weighed, do sometime excuse the deeds that otherwise are of themselves not all of the best. The judge also must inquire after and diligently consider the former life of the man accused; for which, if it fall out to have been good and honest, then doth he deserve some favour and mercy, unless the offence for which he is troubled be so heinous that it can admit no sparkle of pity. But godliness or the fear of God, with pouring out of prayers unto the Lord and a diligent and lawful examination of the deed or word, that is, of the fault committed, is the best rule for the judge to follow in choosing his time when to use pity, and when to deal with extreme rigour. For otherwise decent clemency is most praiseworthy before God and men.
I have shewed you, dearly beloved, that the magistrate both may and of duty ought to punish offenders; then, for what causes the Lord will have them to be punished; and, lastly, how, when, and how much, they are to be punished. It remaineth now for me to declare wherefore, and for what offences, they are to be punished: which I mean to lay down in one word, and briefly too. All words and deeds which are contrary to the laws of God and the magistrate, that is, all things that are done mischievously against the laws, are to be punished: but laws are made either for religion or politic government; and politic government consisteth in honesty, justice, and peace. Therefore the magistrate must punish and keep under all them which do disturb, afflict, trouble, destroy, or overthrow honesty, justice, public peace, or private tranquility betwixt man and man. Let him punish dishonesty, ribaldry, filthy lust, whoredom, fornication, adultery, incest, sodomy, riotousness, drunkenness, gluttony, covetousness, cozening, cutting usury, treason, murder, slaughter of parents, sedition, and whatsoever is like to these. The law of the Lord, published by the ministry of Moses, doth in the eighteenth and twentieth of Leviticus reckon up a beadrow [catalog] long enough of such offences as are to be punished. And lest perhaps any man may think, that at this day that which Moses hath rehearsed is utterly abolished, let him give ear to Paul, who saith: "To the just the law is not given, but to the unjust, and to sinners, to unholy and unclean, to murderers of fathers and murderers of mothers, to manslayers, to whoremongers, to them that defile themselves with mankind, to man-stealers, to liars, to perjured men, and if there be any other thing contrary to sound doctrine." [1 Tim. 1.9,10.] But apostates, idolaters, blasphemers, heretics, false teachers, and mockers of religion, do offend against the laws of religion, [and therefore ought they to be punished by the magistrate's authority.]
But the question hath been, and is yet at this day, in controversy, whether it be lawful for a magistrate to punish any man in his jurisdiction for the contempt of religion or blaspheming of the same? The Manichees and Donatists were of opinion that no man ought to be compelled, much less to be killed, for any religion; but that every man ought to be left to his own mind and judgment. And yet the scripture doth expressly command the magistrate not to spare false prophets; yea, rebels against God are commanded by holy laws and judges to be killed without mercy. The places are extant to be seen in the holy scriptures; the one in the thirteenth of Deuteronomy, the other in the seventeenth of the same book. In Exodus this same is set down for a rule: "Whosoever sacrificeth to any God, but to the Lord alone, let him be rooted out." [Exod. 22.20.] In Leviticus, the blasphemer is slain and overwhelmed with stones. [Lev. 24.10-16.] In the book of Numbers, the man is slain that did unhallow the sabbath-day. [Numb. 15.32-36.] And how many, I pray you, did God's revenging sword destroy of that calvish people that did erect and worship the calf in the wilderness? [Exod. 32.] Helias at mount Carmel killed whole hundreds of false prophets in a solemn set and appointed sacrifice. [1 Kings 18.] Eliseus, at the Lord's commandment, anointed Jehu king, to the end that he might root out the house of Ahab, and kill at once all Baal's priests. [2 Kings 9.] Joiada the priest slew Athalia [2 Kings 11], and good king Josias destroyed together the wicked and stubborn priests of all high places. [2 Kings 23.20.] Augustine, Tractatu in Joan. 11, disputing against the Donatists, doth prove by the example of Nabuchodonozor, that Christian princes do justly punish the Donatists for despising Christ and his evangelical doctrine. Among other things he saith: "If king Nabuchodonosor did glorify God for delivering three children out of the fire; yea, and glorified him so much that he made a decree throughout his kingdom for his honour and worship: why should not the kings of our days be moved so to do, which see not three children saved from the flame alone, but themselves also delivered from the fire of hell, when they behold Christ, by whom they are delivered, burnt up in Christian men, and when to a Christian they hear it said, Say thou that thou art no Christian? This they will do, and yet this they will not suffer. For mark what they do, and see what they suffer. They kill souls; they are afflicted in body. They kill other eternally, and do complain that they themselves do suffer a temporal death."3
Thus much hath Augustine. In the new Testament we have most evident examples of Peter and Paul, Christ's greatest apostles: the one whereof slew Ananias and Sapphira, for their lying hypocrisy and feigned religion [Acts 5]; the other struck Elymas the sorcerer blind, and bereft him of his eyes. [Acts 13.11] Neither is there one hair's difference to choose, whether a man be killed with a sword or with a word. For to kill is to kill, by what means or with what instrument soever it be done. God wrought that by his apostles, and doth the like by the magistrate also. For vengeance is God's, who giveth it to the magistrate and chief men to be put in use and execution upon wicked offenders. There are to be seen many laws made by holy Christian princes for the state of religion, which give an especial charge to kill idolaters, apostates, heretics, and godless people. I will recite unto you, dearly beloved, one law among many, made by the holy emperor, Constantine the Great. For in an epistle, intituled ad Taurum P.P., he saith: "It pleaseth us that in all places, and throughout every city, the temples be out of hand shut up, and liberty denied to wicked men to have access thither to commit idolatry. We will also and command all men to be restrained from making of sacrifice. And if so be it happen that they offend herein, our pleasure is that they be slain with the sword, and the slain man's goods to be confiscate. And we have decreed that the rulers of the provinces shall suffer like punishment, if they neglect to punish the offenders."4 The very same almost do Theodosius and Valentinianus by proclaimed edicts command in Codice Theodosiano, tit. 2. And Valentinianus and Martianus in Codice Justiniano, tit. 2. Lib. I.5 Lastly, without all controversy, adulterers, murderers, rebels, deceivers, and blasphemers, are rightly punished, and not against religion. Wherefore it followeth consequently, that false prophets and heretics are by good right slain: for they are deceivers, blasphemers, and man-killers.
But in the execution of this punishment there must a great consideration be had and observed; first, of the persons; then, of the errors; and, lastly, of the penalties. For in persons there is great diversity: because there are some standard-bearers, and heady grand captains, which are stout, hypocrites, and full of tongue, and therefore the aptest for to seduce; who, falling headlong without amendment to their own destruction, do with themselves draw other into danger. They must by all means be bridled and kept under, as plagues to the church; lest, like a canker, they spread all over. Again, there are some silly seduced souls, made fools by other men, which err not of malice nor stubborn stomach, but do repent and amend in time. These the magistrate must not straightway condemn, but pray to the Lord, and bear with their error, and teach them in the spirit of gentleness, until they be brought to a better mind.
Moreover, in erroneous doctrines some are more intolerable than other some are. Some there be so wicked and blasphemous, that they are unworthy to be heard, much less to be done. Some there are which do directly and openly tend to the overthrow of the commonweal, unless they be in time appeased and resisted. But those crimes that are brought in and accused, ought first to be by the scripture and manifest truth convinced to be such as they are said to be. When the truth is known, and manifest proofs of scripture alleged, then is it lawful most sharply to punish those blasphemers of God and overthrowers of the church and commonweal. But a light and easier penalty must be set on the heads of them whose offence consisteth in light and smaller errors: for some do err so, that by their error God is not blasphemed, the church not subverted, nor the commonweal in any danger at all. Where, by the way, every one must think of that saying of the apostle: "Bear ye one another's burden." [Gal. 6.2.] And again: "The weak in faith receive ye, not to the doubtfulness of questions." [Rom. 14.1.]
Furthermore, in punishment and penalties there is great difference. They that err stubbornly, and do their endeavour to draw in and keep other men in their errors, blasphemers, troublers, and subverters of churches, may by law be put to death. But it followeth not thereupon, that every one which erreth must therefore by and by suffer loss of his life. The things, that by threats and fault-finding may be remedied and amended, must not be punished with sharper correction. A mean in every thing is always the best. There is a penalty by payment of money. There are prisons for them to be shut up into, which are corrupted with the poison of false doctrine and lack of belief, lest peradventure they infect others with their contagious disease. There are also other means to punish the body, whereby to keep them under that err from the truth, to keep them from marring those that are sound, and to preserve themselves that they perish not utterly, but that through repentance they may fall to amendment. But the fear of God, justice, and the judge's wisdom shall by the circumstances make him perceive how he ought to punish the naughty doctrine and stubborn rebellion of malicious seducers, and how to bear with the foolish, light belief of silly seduced men, grounded upon simplicity, and not envenomed rancour.
Earnest and diligent admonition is given too late, when the fault is already committed, and is so detestable that it ought straightway to be plagued with the sword: let the magistrate, therefore, always have an eye to admonish them in time, that are to be warned to take heed of a fault. For earnest admonitions are earnestly commended to men in authority to use to their subjects, when they begin to work any broil. Moreover, godly and wise magistrates have many times pardoned unwitting offenders, whom they saw ready to repent upon giving of warning. The Lord in the gospel biddeth us admonish a sinner; then, if he repent, to pardon his fault; but if he reject a fair warning once given him, then to punish him so much the sharper. [Matt. 18.15-17.] And Joshua, before he made open war to be proclaimed upon the children of Reuben, did first by embassage command them to dig down the altar, which they seemed to have made contrary to the law of the Lord. [Josh. 22.] The emperor Justinian also granted pardon to them which repented, and turned to a sounder opinion, Constitut. 109.6 Moreover, Josias did not utterly kill all them that were wrapped in error and idolatry, but those especially that were incurable, and would not recant. The magistrate therefore must wisely moderate the matter, and be very circumspect in punishing offenders.
I cannot here wink and slyly pass over the objections, that some men make against that which hitherto I have said touching punishment; to wit, that the apostle Paul hath not commanded to kill or punish an heretic after the first and second admonition, but to avoid him [Titus 3.10.]; again, that faith is the gift of God, which cannot be given or engrafted in any man by rigour of the sword; also, that no man is to be compelled: he that constraineth may make an hypocrite; but a devout and zealous man he cannot make: and lastly, that the apostles required no aid of kings either to maintain or set out the religion of Christ, or else to punish blasphemous railers and enemies of God's word. To all this I answer thus: Paul, when he wrote his epistle to Titus, did write to an apostle: in that epistle, therefore, he instructeth an apostle how to behave himself according to his duty toward an heretic past all recovery. If he had written to Sergius Paulus, or any magistrate he would undoubtedly have taught him his office. For the same Paul, standing before Sergius Paulus, then prince of Cyprus, did by his deeds declare unto him the duty of a magistrate: for first, he did not only most sharply rebuke the false prophet Elymas, then forsake his company, eschew and shun him, as the apostle John did Cerinthus,7 but strake him also with bodily blindness.
I grant and confess, that faith is God's gift in the heart of man, which God alone doth search and know. But men are judged by their words and deeds. Admit, therefore, that the erroneous opinion of the mind may not be punished; yet notwithstanding, wicked and infective profession and doctrine must in no wise be suffered. Verily, no man doth in this world punish profane and wicked thoughts of the mind: but if those thoughts break forth into blasphemous words, then are those blaspheming tongues to be punished of good princes. And yet by this I say not, that godliness lieth in the magistrate to give and bestow. Justice is the very gift of God, which none but God doth give to men: but who is so foolish as to gather thereupon, that unjust men, robbers, murderers, and witches are not to be punished, because the magistrate by punishment cannot bestow righteousness upon unrighteous people? We must therefore make a difference betwixt faith, as it is the gift of God in the heart of man, and as it is the outward profession uttered and declared before the face of men. For while false faith doth lurk and lie hid within the heart, and infecteth none but the unbeliever, so long the unbelieving infidel cannot be punished: but if this false and forged faith, that so lay hid, do once break forth to blaspheme, to the open tearing of God and the infecting of his neighbours, then must that blasphemer and seducer be by and by plucked under, and kept from creeping to further annoyance. Not to suppress such a fellow as this, is to put a sword in a madman's hand to kill unwise and weakly men.
Faith is the gift of God; but, where he bestoweth faith, he useth means to give it by: those means he will not have us to neglect. An householder knoweth that faith is the gift of God; and yet notwithstanding, he instructeth his children in the word of truth, he chargeth them to go to church, to pray for faith, and to learn it at the preacher's mouth. A good father would think much, yea, he would not think well of it, if his son should say: Father, I pray you, teach me not, send me not so much to church, and beat me not if I be not there; for faith is the gift of God, which whipping cannot bring me to. Then what man can quietly abide to hear that faith is the gift of God, and that therefore no man ought for faith, that is, for the corruption of faith and open blasphemy, to suffer any punishment?
And yet Petilian, in the eighty-third chapter of Augustine's second book contra Petiliani literas, crieth out, and saith: "God forbid, and far be it from our conscience, to compel any man to our religion."8 Shall we, therefore, go on to speak the words of heretics, or to say, that the Lord God in the scriptures hath planted hypocrisy, where with threats and punishment he hath driven men to goodness? David saith: "It is good for me, Lord, that thou hast chastised me." [Psalm 119.71.] And Jeremy saith: "Thou hast chastised me, O Lord, and I am chastised, like an untamed heifer." [Jer. 31.18.] But if no man ought to be compelled to goodness, to what intent doth Solomon (the wisest of all men) so many times command to chastise children? "He that spareth the rod hateth the child," saith he; "Thou indeed dost strike him, but with the rod thou deliverest his soul from death." [Prov. 13.24; 22.14.] Daily experience, and the disposition of men, do plainly teach, that in men there are most vehement affections, which, unless they be remedied and bridled betimes, do both destroy them in whom they be, and other men too, who at the first might easily with light punishment have been preserved. Men in their madness despise compulsion and chastising punishment; but, when they come to themselves again, and see from how great evils they are delivered by those that compelled them, then they rejoice that to their health they were chastised, and praise the compulsion which before they despised.
Let us hear what Augustine doth think and teach hereof, whose experience in this matter was very much. In his forty-eighth Epist. ad Vincentium contra Donatist. de vi coercendis hæreticis, he writeth thus: "My opinion sometime was, that no man ought by force to be compelled to the unity of Christ; that we ought to deal by words, fight in disputations, and overcome with reason, lest peradventure we should have those to counterfeit themselves to be catholics, whom we knew to be open heretics. But this opinion of mine was not confuted with the words of my gainsayers, but with the examples of those which shewed the contrary. For first, mine own city (Hippone) was objected against me; which, when as sometime it held wholly with Donatus, was by the fear of the imperial laws converted to the catholic unity; and at this day we see it so greatly to detest the naughtiness of your heretical stomachs, that it is thought verily that your heresy was never within it. And many more places by name were reckoned up unto me, that, by the effect of the thing itself, I might confess, that in such a case as this that may be rightly understood where it is written: 'Give a wise man occasion, and he will be the wiser.'"9 And again: "Not every one that spareth is a friend; nor every one that striketh is an enemy. Better are the stripes of a friend than the voluntary kisses of an enemy. It is better to love with severity, than to deceive with lenity. He that bindeth a frenzy man, and waketh him that is sick of the lethargy, doth trouble them both, and yet he loveth them both. Who can love us more than God himself doth? and yet, as he teacheth us mildly, so he ceaseth not to terrify us to our health. Thinkest thou that no man ought to be compelled to righteousness, when thou readest that the Goodman of the house said to his servants, 'Whomsoever ye find, compel them to come in;' when thou readest that he, that was first called Saul and afterward Paul, was constrained by the violent force of Christ, which compelled him to know and keep fast the truth of the gospel?"10 And the same Augustine again, in Epist. ad Bonifacium comitem 59, saith: "Where is that now that they were wont to cry and say, that it is at every one's free choice to believe, or not to believe? Whom did Christ constrain? whom did he compel? Lo, here they have the apostle Paul for an example: let them confess in him, that Christ first compelled him, then taught him; first struck him, and afterward comforted him. And it is wonderful how he, which by the punishment of his body was compelled to the gospel, did after his entering in labour more in the gospel than all they that were called by word alone: and whom the greater fear compelled to charity, his charity, once perfect, did cast out all fear. Why then should not the church therefore compel her lost children to return, since the lost children have compelled other to their destruction?"11
Again, in the same epistle, the same Augustine saith: "Whereas some, which would not have upright laws ordained against their ungodliness, do say, that the apostles did never require any such things of the kings of the earth; they do not consider, that that was another time (not like to this), and that all things are done in their due time and season. For what emperor did at that time believe in Christ, to serve him by making laws in defence of religion against ungodliness? when as yet that prophecy was in fulfilling, 'Why did the heathen rage, and the people imagine a vain thing? The kings of the earth stood up, and the rulers took counsel against God and against his Christ.' For as yet that was not begun which followeth in the Psalm, where it is said: 'And now understand, ye kings, and be ye learned, ye that judge the earth; serve him in fear and rejoice in trembling.' But how do kings serve God in fear, but by forbidding and punishing with devout severity those things which are done against God's commandments? For in that he is a man, he serveth him one way; but in that he is a king, he serveth him another way: because in that he is a man, he serveth him by living faithfully; but in that he is a king, he serveth him by establishing convenient laws to command that which is just, and to forbid the contrary:—as Ezechias served him, by destroying the groves and temples of idols, and those high places that were erected against the Lord's commandment: as Josias served him, by doing the like: as the king of Ninivie served him, by compelling the whole city to please and appease the anger of the Lord: as Darius served him, by giving the idol into Daniel's power to be broken in pieces, and by casting his enemies in among the lions: as Nabuchodonosor served him, by a terrible proclamation, which forbade all men within his dominion to blaspheme the true and very God. In this therefore should kings serve God, in that that they are kings, by doing those things which none can do but kings. Wherefore, when as in the apostles' times the kings did not as yet serve the Lord, but imagined a vain thing against the Lord and against his Christ, that the prophet's sayings might be fulfilled, there could not as then, I say, any laws be made to forbid ungodliness, but counsel be rather taken to put ungodliness in practice. For so the course of times did turn, that both the Jews should kill the preachers of Christ, thinking that thereby they did God good service; and that the Gentiles also should fret and rage against the Christians, and make the martyrs' constancy overcome the flames of fire. But afterward, when that began to be fulfilled which is written, 'And all the kings of the earth shall worship him, all nations shall serve him;' what man that were well in his wits would say to kings, 'Tush, take ye no care how, or by whom, the church of your Lord is defended or defaced within your kingdom; let it not trouble you to mark who will be honest, and who dishonest within your dominion?' For since God hath given man free will, why should adultery be punished, and sacrilege left untouched? Is it a lighter matter for the soul to break promise with God, than a woman with a man? Or, for because those things which are not committed by contempt, but by ignorance of religion, are to be more mildly punished, are they therefore to be utterly neglected? It is better (who doubteth?) for men to be brought to the worshipping of God by teaching, rather than for to be compelled to it by fear or grief of punishment: but because these are the better, they, which are not such, are not therefore to be neglected. For it hath profited many men (as we see by experience) first to have been compelled with fear and grief, that afterward they might either be taught, or follow that in deed which they had learned in words."12
Hitherto I have rehearsed the words of Augustine's answer to the objections of them which are of opinion, that by no law disobedient rebels, seduced people, and deceivers, ought to be punished in cases of religion.
I see my hope doth fail me, wherein I thought that I could have been able in this sermon to have made an end of all that I had to say touching the magistrate. But I perceive that here I must stay, unless I should go on, dearly beloved, and be too tedious unto you all. I mean to-morrow, therefore, to add the rest that is yet behind. Make ye your humble prayers unto the Lord upon your knees, and then depart in peace.
1. Λεγεται δε και τας δικας διακρινων εν αρχη τας θανατικας, την χειρα των ωτων τω ετερω προστιθεναι του κατηγορου λεγοντος, οπως τω κινδυνευοντι καθαρον φυλαττηται και αδιαβλητον.—Plutarch. in Vit. Alexandri. Lond. 1723. Tom. IV. p. 60. See also Early Writings of Bp. Hooper, Parker Soc. ed. page 408.
2. Diminutio capitis, Lat. "A Roman citizen possessed libertas, civitas, and familia: the loss of all three, or of libertas and civitas (for civitas included familia) constituted the maxima capitis diminutio."— Smith's Dict. of Gr. and Rom. Antiq. voc. caput.
3. Si Nabuchodonozor rex laudavit et prædicavit et gloriam dedit Deo, quia liberavit de igne tres pueros, et tantam gloriam dedit, ut decretum mitteret per regnum suum, Quicunque dixerint, &c., quomodo isti reges non moveantur, qui non tres pueros attendunt liberatos de flamma, sed seipsos liberatos de Gehenna, quando vident Christum, a quo liberati sunt, exsufflari in Christianis, quando audiunt dici Christiano, Dic te non esse Christianum? Talia facere volunt, et saltem talia pati nolunt. Nam videte qualia faciunt, et qualia patiuntur. Occidunt animas, affliguntur in corpore. Sempiternas mortes faciunt, et temporales se perpeti conqueruntur.—Opp. Par. 1531. Tom. IX. fol. 22. P.
4. Imp. Constantinus. A. ad Taurum. P.P. I. Placuit omnibus locis atque urbibus universis claudi protinus templa, et accessu vetito omnibus licentiam delinquendi perditis abnegari. Volumus etiam cunctos sacrificiis abstinere. Quod si aliquid forte hujusmodi perpetraverint, gladio ultore sternantur, facultates etiam peremti fisco decernimus vindicari. Et similiter puniri rectores provinciarum, si facinora vindicare neglexerint.—D. Prid. No. Mar. Arbitrione et Lolliano Coss. Justin. Cod. Lib. I. Tit. ii. p. 100. Lugd. 1551. Tom. I.
5. Impp. Theod. et Valentin. A. A. Isidoro P. F. P. Cod. Theod. Lib. XVI. Tit. X. p. 526. Par. 1607.—Impp. Valentin. et Mart. A. A. Palladio. P. P. VII Lib. I. Tit. ii. Cod. Justin. Tom. I. Lugd. 1551. p. 102.
6. Εξεστι δε αυταις της βελτιονος γινομεναις γνωμης, και την ορθην και αληθινην ασπαζομεναις πιστιν... των τοιουτων απολαυειιν δωρεων τε και προνομιων.—Justin. Auth. Collat. VIII. Tit. X. Novell. 109, cap. 2. p. 432. Gotting. 1797.
7. Euseb. Eccles. Hist. Lib. IV. cap. 14. Milner's Church History, Cent. i. chap. 13. Vol. I. p. 102, ed. 1834.
8. Augustine says, Noli ergo dicere, Absit, absit a nostra conscientia, ut ad nostram fidem aliquem compellamus. Facitis enim ubi potestis.—Opp. Par. 1531. Tom. VII. fol. 29. P.
9. Nam mea primitus sententia erat, neminem ad unitatem Christi esse cogendum; verbo esse agendum, disputatione pugnandum, ratione vincendum, ne fictos catholicos haberemus, quos apertos hæreticos noveramus. Sed hæc opinio mea non contradicentium verbis, sed demonstrantium superabatur exemplis: nam primo mihi opponebatur civitas mea, quæ cum tota esset in parte Donati, ad unitatem catholicam timore legum imperialium conversa est; quam nunc videmus ira hujus vestræ animositatis perniciem detestari, ut in ea nunquam fuisse credatur: ita aliæ multæ, quæ mihi nominatim commemorabantur; ut ipsis rebus agnoscerem etiam in hac causa recte intelligi posse, quod scriptum est, Da sapienti occasionem, et sapientior erit.—Opp. Tom. II. fol. 34. P.
10. Non omnis qui parcit amicus est, nec omnis qui verberat inimicus. Meliora sunt vulnera amici, quam voluntaria oscula inimici. Melius est cum severitate diligere, quam cum lenitate decipere... Qui phreneticum ligat, et qui lethargicum excitat, ambobus molestus, ambos amat. Quis nos potest amplius amare quam Deus? Et tamen nos non solum docere suaviter, verum etiam salubriter terrere non cessat ... Putas neminem debere cogi ad justitiam, cum legas patrem familias dixisse servis, Quoscunque inveneritis cogite intrare; cum legas etiam ipsum primo Saulum, postea Paulum, ad cognoscendam et tenendam veritatem magna violentia Christi cogentis esse compulsum?—Aug. Ep. 48. ad Vincentium Opp. Par. 1531. Tom. II. fol. 33. P.
11. Ubi est quod isti clamare consueverunt, Liberum est credere vel non credere? Cui vim Christus intulit? Quem coegit? Ecce habent Paulum apostolum: agnoscant in eo prius cogentem Christum et postea docentem, prius ferientem et postea consolantem. Mirum est autem quomodo ille, qui pœna corporis ad evangelium coactus intravit, plus illis omnibus qui solo verbo vocati sunt in evangelio laboravit; et quem major timor compulit ad caritatem, ejus perfecta caritas foras misit timorem. Cur ergo non cogeret ecclesia perditos filios ut redirent, si perditi filii coegerunt alios ut perirent?—Opp. Tom. II. fol. 42. P.
12. Quod enim dicunt qui contra suas impietates leges justas constitui nolunt, non petisse a regibus terræ apostolos talia, non considerant aliud fuisse tunc tempus, et omnia suis temporibus agi. Quis enim tunc in Christum crediderat imperator, qui ei pro pietate contra impietatem leges ferendo serviret, quando adhuc illud propheticum complebatur, Quare fremuerunt gentes et populi meditati sunt inania; astiterunt reges terræ et principes convenerunt in unum adversus Dominum et adversus Christum ejus? Nondum autem agebatur, quod paulo post in eodem Psalmo dicitur, Et nunc, reges, intelligite, erudimini qui judicatis terram: servite Domino in timore, et exultate ei cum tremore. Quomodo ergo reges Domino serviunt in timore, nisi ea, quæ contra jussa Domini fiunt, religiosa severitate prohibendo atque plectendo? Aliter enim servit quia homo est, aliter quia etiam et rex est. Quia homo est, ei servit vivendo fideliter: quia vero etiam rex est, servit leges justa præcipientes et contraria prohibentes convenienti vigore sanciendo: sicut servivit Ezechias, lucos et templa idolorum, et illa excelsa quæ contra præcepta Dei fuerant constructa, destruendo: sicut servivit Josias, talia et ipse faciendo: sicut servivit rex Ninivitarum, universam civitatem ad placandum Dominum compellendo: sicut servivit Darius, idolum frangendum in potestatem Danieli dando, et inimicos ejus leonibus ingerendo: sicut servivit Nabuchodonosor, do quo jam diximus, omnes in reguo suo positos a blasphemando Deo lege terribili prohibendo. In hoc ergo serviunt Domino reges, in quantum sunt reges, cum ea faciunt ad serviendum illi, quæ non possunt facere nisi reges. Cum itaque nondum reges Domino servirent temporibus apostolorum, sed adhuc meditarentur inania adversus cum et adversus Christum ejus, ut prophetarum prædicta omnia complerentur, non utique tunc possent impietates legibus prohiberi, sed potius exerceri. Sic enim ordo temporum volvebatur, ut et Judæi occiderent prædicatores Christi, putantes se officium Deo facere, sicut prædixerat Christus; et gentes fremerent adversus Christianos, et omnes potentia (patientia) martyrum vinceret. Postea veto quam cœpit impleri quod scriptum est, Et adorabunt eum omnes reges terræ, omnes gentes servient illi; quis mente sobrius regibus dicat, 'Nolite curare in regno vestro a quo tueatur (teneatur) vel oppugnetur ecclesia Domini vestri: non ad vos pertineat in regno vestro, quis velit esse sive religiosus sive sacrilegus.... Cur enim, cum datum sit divinitus homini liberum arbitrium, adulteria legibus puniantur, et sacrilegia permittantur? An fidem non servare levius est animam Deo, quant fœminam viro? Aut si ea, quæ non contemptu sed ignorantia religionis committuntur, mitius vindicanda, numquid ideo negligenda sunt? Melius est quidem (quis dubitaverit?) ad Deum colendum doctrina homines duci, quam pœnæ timore vel dolore compelli. Sed non quia isti meliores sunt, ideo illi, qui tales non sunt, negligendi sunt. Multis enim profuit, quod experimentis probavimus, prius timore vel dolore cogi, ut postea possint doceri, aut quod jam verbis didicerant opere sectari.—Opp. Tom. II. fol. 42. P.