« PreviousContinue »
it is adjudged by the supream Governour to be less beneficial to himself and his Subjects, than the omitting the execution there. of would be; but even Justice requires that it should be actually omitted, and that the person liable by the Letter of the Law to be punilhed, should be freed and delivered from the Penalty ; which was never intended by the Law-giver to be executed on any one to the prejudice of the Commonweal. For to dispense with Penalties, is not so tru
an Ad of meer Grace, as of distributive Justice, forasmuch as no Dispensation'oughe of right to be given, save only to such, as the Law it self would have exempted from Punishment, in case the Lawgiver had foreseen the Circumstances which render their indemnity better for the Public, than their being punished. So that whenever a Dispensation to free from the Penalty of the Law, is rightly granted, the intent of that very Law is more truly fulfilled, than if the Penalty were inflicted'; yca in truth it is only in so doing rightly fulfiled, the very ground and reason of granting Dispensations being this, that Penal Laws might have their due effect, viz. the Good of the Community, which in fome Cafes and Circumstances would by the executing them in their lite
atland'wh Ww ral
ral sense be prejudiced, instead of being promoted.
8. The Truth of this Affertion, that punitive Justice is not vindicative, will yet farther appear from this, that Lex Talionis, Eye for Eye, Tooth for Tooth, &c. is no part of the Law of Nature, as it would of neceflity be, in case Penalties for Breach of Laws were purely vindicative, and intended as fatisfaction or just recompeuce for the vio. lation of them. For since in strictness there's no-equality or proportion between the Member of a Man's Body and the Goods of Fortune, it were unequal and unjust to recompense the loss of any Limb with a pecuniary Mul&; and yet we fee 'tis generally so done by Christians, who 'nevertheless maintain the perpetual obligation of the Law of Nature. Yea the Learned Bodin tells us upon no slight ground, that the Lex Télionis, in the commonly received Notion of it, was never in practice among the very Jeros ; his Words in the Englih TransJation are these ; 'To requite like with like ' is indeed nothing else, but to punish Offences with Punishments answerable to them, that is to say, great Offences with great Punishments, mean with mean, and • fo little ralencis, lightly ; which they
also meant when they said, “ Hand for á · Hand, a Tooth for a Tooth, and an Eye for.
an Eye. And so the ancient Hebrews, the 'best interpreters of God's Law, have understood it,expounded it & practised it, as it is in their Pande&s to be seen in the Title of Penalties. Yea Rabbi Kanan denieth the Law of like Punishment to have any where . in the 'Cities of the Hebrews taken place in such fort, as that he should have an Eye put out who had put out another man's Eye; but the eftimation of an Eye put out, was usually by the discretion of the Judges, in money valued. For proofwhereof let it be, that before the Law of like 'Punishment, there was a Law ( viz.Exod. 21.) whereby it was ordained, that if two men fighting, one of them should "hurt the other, but not yet unto Death, 'he which had done the hurt, should pay the Physician for healing thereof. But to what end should he so pay the Phyfician, if "he which did the hurt were in like fort to be himself wounded? It should also thereof follow more absurdly, that many delicate and tender Persons in receiving of such Wounds, as they had given to others, · should thereof themselves die and perish. * Besides that also he wholiad the harm done him, having lohiitland'whUwith he
" should get his Living, if the others Hand
were also for the same cut off, he so want?ing his Hand, wherewith he should
his bis Living, might haply so starve. Wheres fore such literal Exposition of the Law of like Punishment, by Aristotle and · Favorine, is but vain and deceitful. Bodir of a Common-weal, Book 6. page 781.
9. I'le conclude this point with one only Argument more for the confirmation of what has been said, which is this, to infli& Punishment as dolorous and painful, without regard had to a farther End to be obtained by the doing of it, is to do dire& Evil'; because that Punishment, which has no Tendency to the procuring of something which has as much or more good in it than the pain has harm (for Pain fimply in itself considered,is Evil, as being offenhve to Nature and a thing occasioned by Sin) is purum putum Malum,meer Evil; which for any Law to design, would argue the Makers of it to be void of Reason and Humanity.
Obj.1. If the Breach of a Law be not an Offence and punishable, as it only stands in opposition to the Will of the Law-giver, without regard had to the Public Good prefi mod to be included in it; then are not
en obliged in Cinscience to obey a ba Law, or which te to the Common
Good: But men are obliged in Conscience to obey the Laws of the Land where they live, although in that respe& bad, as not tending at all to the Public Good: Ergo, the Breach of the Law is an Offence and punishable, as it only stands in opposition to the Will of the Law-giver, without regard had to the public Good presumed to be incladed in it.
Solut. In answer first to the Major, I return, that if it were so, that a private Perfon could certainly know, that a certain Law had no manner of Tendency to the Public Weal, yet would he be obliged in Conscience to give Obedienee to it, (provided it were not against the Moral, or fome Positive Divine Lan) because in disobeying, he might be an occafion to others of flighting, or contemning the Governour and Government, which is a Mischief of most dangerous Consequence to a Nation, But Secondly, I answer to the Minor, that no Law, which is not repugnant to some part of the Law of God (who, by reason of his inerrable Wisdom, never commands but what is good) ought by private Persons to be judged bad. For every Legislator among Men, whatever way he acquires a Right to the Legislative Power, doth necefsarily receive with it the Sovereign or Su