it is adjudged by the fupream Governour to be lefs beneficial to himself and his Subjects, than the omitting the execution thereof would be; but even Juftice requires,that it fhould be actually omitted, and that the perfon liable by the Letter of the Law to be punished, fhould 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 difpenfe with Penalties, is not so truly an Act of meer Grace, as of diftributive Juftice, forafmuch as no Difpenfation ought of right to be given, fave only to fuch, as the Law it felf would have exempted from Punishment, in cafe the Lawgiver had forefeen the Circumftances which render their indemnity better for the Public, than their being punished. So that whenever a Difpenfation 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; yea in truth it is only in fo doing rightly fulfilled, the very ground and reafon of granting Difpenfations 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 litewahdland wh dwi ral

ral fense be prejudiced,inftead of being promoted.

8. The Truth of this Affertion, that punitive Juftice 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 neceffity be, in cafe Penalties for Breach of Laws were purely vindicative, and intended as fatisfaction or juft recompeuce for the violation of them. For fince in ftrictness 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, recompenfe the lofs of any Limb with a pecuniary Mule; and yet we fee 'tis generally fo done by Chriftians, who nevertheless maintain the perpetual obligation of the Law of Nature. Yea the Learned Bodin tells us upon no flight ground, that the Lex Talionis, in the commonly received Notion of it, was never in practice among the very Jews; his Words in the English Tranf lation are thefe; To requite like with like is indeed nothing elfe, but to punish Offences with Punishments answerable to 'them, that is to fay, great Offences with great Punishments, mean with mean, and

.

fo little fences lightly; which they

'alfo

"alfo meant when they faid, a Hand for a "Hand, a Tooth for a Tooth, and an Eye for. an Eye. And fo the ancient Hebrews, the 'beft interpreters of God's Law, have un'derstood it,expounded it & practifed it, as "it is in their Pandects to be feen 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 fuch fort, as that he fhould 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 difcretion of the Judges, in money valued. For proof where'of 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 fhould 'hurt the other, but not yet unto Death, 'he which had done the hurt, should pay 'the Phyfician for healing thereof. But to 'what end fhould he fo pay the Phyfician, if 'he which did the hurt were in like fort to 'be himself wounded? It should also thereof follow more abfurdly, that many deli cate and tender Perfons in receiving of 'fuch Wounds, as they had given to others, 'fhould thereof themfelves die and perish. Besides that also,he wholiad the harm done 'him, having loland whwith he 214 The d

'fhould get his Living, if the others Hand were also for the fame cut off, he fo wanting his Hand, wherewith he should get his 'his Living, might haply fo ftarve. Wherefore fuch literal Expofition of the Law of like Punishment, by Ariftotle and "Favorine, is but vain and deceitful. Bodin 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 faid, which is this, to inflic 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 fomething which has as much or more good in it than the pain has harm (for Pain fimply in it self confidered,is Evil, as being offenfive to Nature,and a thing occafioned by Sin) is purum putum Malum,meer Evil; which for any Law to defign, would argue the Makers of it to be void of Reafon and Humanity.

Obj. 1. If the Breach of a Law be not an Offence and punishable, as it only stands in Oppofition to the Will of the Law-giver, without regard had to the Public Good prefimed to be included in it; then are not men obliged in Cnfcience to obey a bad Law, or which te to the Common

Good,

Good: But men are obliged in Confcience to obey the Laws of the Land where they live, although in that refpect bad, as not tending at all to the Public Good: Ergo, the Breach of the Law is an Offence and punishable, as it only ftands in oppofition to the Will of the Law-giver, without regard had to the public Good prefumed to be included in it.

Solut. In answer first to the Major, I return, that if it were fo, 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 Confcience to give Obedience to it, (provided it were not against the Moral, or fome Pofitive Divine Law) because in disobeying, he might be an occafion to others of flighting, or contemning the Governour and Government, which is a Mischief of moft dangerous Confequence to a Nation, But Secondly, I answer to the Minor, that no Law, which is not repugnant to fome part of the Law of God (who, by reafon of his inerrable Wisdom, never commands but what is good) ought by private Perfons to be judged bad. For every Legislator among Men, whatever way he acquires a Right to the Legislative Power, doth neceffarily receive with it the Sovereign or Su

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prem