a penalty upon him that does or omits an action respectively. So Moses to the children of Israel; " If a man shall steal an ox or a sheep, and kill it or sell it, he shall restore five oxen for one ox, and four sheep for one." 2. A mixed penal law is, when with the precept or prohibition the penalty is adjoined so said God"; " Ye shall not hurt the widow or the fatherless; if ye hurt them, they shall cry unto me, and I will hear their cry, and my fury shall be kindled, and I will strike you with the sword, and your wives shall be widows, and your children fatherless." And of the same nature is that canon of the council of Agatho : "We do by a special order, command all secular persons to hear the whole divine service upon the Lord's day, so that the people presume not to go forth before the blessing of the priest: but if any man shall presume to do so, let him be publicly punished by the bishop." 3. Other laws are purely moral, that is, preceptive without any penalty. This distinction Silvester derides as childish, and of no use; but others deride him: but whatever use it can be of to other purposes, it is of little in this. For whether the penalty be annexed or no, it obliges to penalty"; and therefore whether it be preceptive or no, it obliges to duty and we see it in ocular demonstration in divers of the Levitical and moral laws of God, which sometimes are set down in the style of laws purely penal, and the same laws in other places are penal and prohibitive.

3. (1.) But why are punishments decreed in laws? Are they for the obedient, or for the disobedient? for good men, or for bad? Certainly, for them that do not obey. Now they that obey not, do well or ill, or it is indifferent whether they do or no if they do well they are to be rewarded, and not punished; if the thing after the sanction be still indifferent, why shall he suffer evil that does none? But the case is plain, that in all just governments the punishment is decreed in the laws, that the law may be obeyed; and unless it be equally good to the prince that his subjects obey or be punished, that is, unless it be all one to him whether they be happy and advantaged, or miserable and punished, and that he cares not whether the subject receives the good or the evil of the

Tacitè permissum est quod sine ultione prohibetur: Tertul. 1. adv. Marc.

law, it cannot be supposed that when the subject is punished, the law is satisfied in its first intention.

4. (2.) Add to this, If suffering the punishment does satisfy the law, then the subject is not tied to obey for conscience' sake, but only for wrath, expressly against the Apostle; and then laws would quickly grow contemptible: for the great flies that break through the cobweb lawns of penal laws, would be both innocent and unconcerned; innocent, as not being tied in conscience, and unconcerned, as having many defensatives against the fine.

5. (3.) The saying therefore of St. Austin hath justly prevailed: "Omnis pœna, si justa est, peccati pœna est, et supplicium nominatur;" "Every penalty is relative to an offence, and is called punishment."-And there can be no reason given, why, in laws, there are differing punishments assigned, but that they be proportionable to the greatness of the fault. It follows therefore, that whoever is obliged to suffer the punishment of the law, do ask God's pardon and the king's, for having done a sin, by which only he could be obliged to punishment. Reatus' or 'guilt,' both in di vine laws and in human, is an obligation to punishment: for 'reatus pœnæ' and 'reatus culpa' differ but as the right and left hand of a pillar; it is the same thing in several aspects and situations. And Lucius Veratius was a fool, and a vile person; and having an absurd humour of giving every man he met, a box on the ear, he caused a servant to follow him with a bag of money, and caused him to pay him whom he had smitten, twenty-five asses, a certain sum which was, by the law of the twelve tables, imposed upon him that did an injury: but considered not, that, all that while, he was a base and a trifling fool for doing injury to the citizens.

6. This rule holds in all without exception: it seems indeed to fail in two cases, but it does not; only the account of them will explicate and confirm the rule.

7. (1.) In actions which are not sins, but indecencies, or unaptness to a state of office and action, the evils that are appendant to them, are also but 'quasi pœnæ,' 'half-punishments:' such as is the irregularity, that is incurred by a judge that gives sentence in a cause of blood; he is incapable of entering into holy orders by the ancient laws of the church. A

d Lib. 1. Retract. cap. 9. e A. Gellius, lib. 20. cap. 1. Oiselii, pag. 1092

:

butcher is made incapable of being of the inquest of life and death which incapacity is not directly a punishment, any more than it is a sin to be a butcher; but certain persons are, without their fault, declared unfit for certain states or employments. Now this confirms the rule, for still the proportion is kept; and if it be but like a fault, the consequent of it is but likea punishment. And if at any time these appendages are called punishments, it is by a catachresis or an abuse of the word, and because of the similitude in the matter of it. So we say,The righteous are punished,' that is, they suffer evil, for their own trial, or for the glory of God: and so it is in the law: "Sine culpa, nisi subsit causa, non est aliquis puniendus,” “No man is to be punished without his fault, unless there be cause for it:" that is, no man is to suffer that evil, which in other cases is really a punishment, and in all cases looks like one. And from hence comes that known rule, and by the same measure is to be understood, "Etsi sine causa non potest infligi pœna, potest tamen sine culpa." The word 'pœna' is taken improperly for any evil consequent or adjunct.

8. (2.) This seems to fail in laws, that are conditional or conventional; such as are when the prince hath no intention to forbid or command any thing, but gives leave to do it, but not unless you pay a fine. Thus if a prince commands that none shall wear Spanish cloth, or ride upon a mule, or go with a coach and six horses, under the forfeiture of a certain sum; this sum is a punishment, and the action is a fault : but if the subjects shall ask leave to do it, paying the sum, then it is a conditional or conventional law, and obliges not to obedience, but to pay the fine. For these laws are not prohibitive, but concessory; and there is no sign to distinguish them from others, but the words of the law, the interpretation of the judges, and the allowed practice of the subjects.

9. Of the same consideration are all promises and vows and contracts which are made with a penalty annexed to the breakers. The interested person is first tied to keep his word : if he does not, he sins. But if he does sin, he must therefore pay the penalty; and if he does not, he sins twice. "Haud scio," says Cicerof, "an satis sit eum, qui lacessierit, injuriæ suæ pœnitere." It is not enough for him to repent of the injustice,

f Offic. i. c. 11. §. 1. Heusing. p. 86.

but he must also pay his fine; and yet that does not acquit him from the first fault, but prevents a second. He that so contracts, is twice obliged; and the latter fault is paid by the penalty, and the first fault by repentance and that together.

RULE V.

It is not lawful for a guilty Person to defend himself by Calumny, or a Lie, from the Penalty of the Law, though it be the Sentence of Death.

1. ALL the wisdom of mankind hath ever been busy in finding out and adorning truth, as being that in which we are to endeavour to be like God, who is truth essentially: and therefore Pythagoras in Ælian did say, that 'the two greatest and most excellent works, that God gave to mankind to do, are the pursuits of truth and charity;' for these are excellences, for which God himself is glorious before men and angels. The Persian magi say, that Ormusd (so they called the greatest of their gods) was in his body like light, and his soul was like truth; and that therefore "by truth we are like to God, but by a lie we are made mortal," says Plato". "Veritas, quo modo sol illuminans, colores, et album et nigrum ostendit, qualis sit unusquisque eorum, sic ipsa quoque refellit omnem sermonis probabilitatem; merito à Græcis quoque acclamatum est, principium magnæ virtutis est regina veritasi," "As the sun gives light to us, and distinction to black and white, so does truth to speech; and therefore the Greeks did rightly affirm, that truth is the beginning of the great virtue, that is, of perfection or virtue heroical," said St. Clement.

2. This is true in all regards: but the question is, whe ther truth can be practised at all times. For God speaks truth because it is his nature, and he fears no man, and hath power directly to bring all his purposes to pass: but the affairs of men are full of intrigues, and their persons of infir mity, and their understandings of deception; and they have ends to serve which are just, and good, and necessary; and yet they cannot be served by truth, but sometimes by error h Lib. 6. de Rep. i Clem. Alex. lib. 6. cap. 4.

Lib. 12. Var. Hist.

and deception. And therefore the ancients described Pan, who was the son of Mercury, their god of speech, with the upper part like a man, and the lower part like a beast, rough, hairy, and deformed; not only to signify truth and falsehood, and that truth is smooth, even, and beauteous, and a lie is rough, ugly, deformed, and cloven-footed (" quia mendacii multiplex divortium," says one), but to represent, that in our superior faculties, and our intercourse with the power above us, we must speak truth, but that in our conversation with men below, it is necessary sometimes by a lie to advantage charity, by losing of a truth to save a life. Here then is the inquiry.

I. Whether it can in any case be lawful to tell a lie?

II. Whether it be lawful to use restrictions and mental reservations, so that what we speak, of itself is false, but joined to something within, is truth?

III. Whether, and in what cases, it is lawful to equivocate, or use words of doubtful signification, with a purpose to deceive, or knowing that they will deceive?

IV. Whether it be lawful, by actions and pretences of actions, to deceive others for any end; and in what cases it is so.

Question I.

Whether it can in any case be lawful to tell a lie.

3. To this I answer, that the Holy Scriptures of the Old and New Testament do indefinitely and severely forbid lying. “A righteous man hateth lying," saith Solomon; and Agur's prayer was, "Remove from me vanity and lies!""For the Lord will destroy them that speak lies "." And our blessed Saviour condemns it infinitely, by declaring every lie to be of the devil. "When he speaketh a lie, he speaketh of his own, for he is a liar, and the father of it."-" Lie not therefore one to another," saith St. Paul ":" For all liars shall have their part in the lake, which burneth with fire and brimstone"."-Beyond these things, nothing can be said for the condemnation of lying.

4. But then lying is to be understood to be something said or written to the hurt of our neighbour, which cannot

k Prov. xiii. 5.

a Col. iii. 9.

m Psal. v. 6.

i xxx. 8.

• Rev. xxi. 8. 27.