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RESOLUTIONS.

THE SECOND DECADE.

CASES OF LIFE AND LIBERTY.

CASE I.

Whether, and in what cases, it may be lawful for a man to take

away the life of another.

How light a matter soever it may seem to the world, now long soaked in blood, a man's life is most precious; and may not, but upon the weightiest of all causes, be either taken or given away.

The Great God hath reserved to himself this prerogative, to be the only absolute Lord of it: neither can any creature have power to command it ; but those only, to whom he hath committed it, by special deputation : nor they neither, by any independent or illimited authority ; but according as it is regulated by just laws: to call for a man's life merely out of will, is no other than a Turkish tyranny.

Now the same God, that hath ordained sovereign powers to judge of and protect the life of others, hath given weighty charge to every man, to tender and manage his own; which binds him to use all just means for his own preservation, although it should be the necessitated destruction of another.

Let us see, therefore, how far, and in what cases, man, that is always appointed to be master of his own life, may be also master of another man's.

That public justice may take away the life of heinous malefactors, is sufficiently known, to be not lawful only, but required; and, indeed, so necessary, that without it there were no living at all amongst men.

That, in a just war, the life of an open enemy may be taken away, is no less evident.

The only question is, of private men, in their own cases.

And, here, we need not doubt to say, that even a private man, being mortally assaulted, may, in his own defence, lawfully kill another. I suppose the assault mortal; when both the weapon is deadly, and the fury of the assailant threatens death. As for some slight and sudden passages of a switch or a cane, they come not under this consideration ; although those small affronts offered to eminent persons, prove oftentimes to be quarrels no less than mortal. But, eyen in these assaults, except the violence be so too impetuous that it will admit of neither parley nor pause, there ought to be, so much as may consist with our necessary safety, a tender regard and endeavour to avoid the spilling of blood; but, if neither persuasion, nor the shifting (what we may) our station, can abate any thing of the rage of the assailer, death must : yea, if not my brother only, but my father, or my son, should, in this forcible manner, set upon me; howsoever I should hazard the award of some blows, and with tears beg a forbearance, yet, if there would be no remedy, nature must pardon me: no man can be so near me as myself.

I cannot, therefore, subscribe to the counsel of Leonardus Les sius *, abetting some ancient Casuists, and pretended to be countenanced by some Fathers, that it were meet for Clerical and Religious persons, rather to suffer death, than to kill a murderer : șince no reason can be shewed, why their life should not be as dear to them as others; or why they should be exempted from the common law of nature; or why their sacred hands should be more stained with the foul blood of a wicked man-slayer, justly shed, than any others'. I am sure, Phineas thought not so; nor Samuel, after him; and, which is most of all, that the honour and privileges of the Sons of Levi were both procured and feoffed on them, upon an enjoined bloodshed.

Only here is the favour and mercy of that learned Casuist, that Clerks and Votaries are not always bound rather to die, than kill: “ For," saith he t, “if such a religious person should bethink himself, that he is in a deadly sin; and should, thereupon, fear that he should be damned, if he were killed in that woeful and desperate estate; he were then bouwd, by all means to defend himself, and to prefer the safety of his own soul, before the life of another." As if nothing but the fear of damnation, could warrant a man for his own safeguard : as if nothing but the danger of hell, could authorize a holy person to be his own guardian: as if the best of lives were so cheap and worthless, that they might be given away for nothing: whereas, contrarily, Precious in the sight of the Lord is the death of all his saints ; Ps. cxvi. 15.

But in such a case, according to the opinion of this great Casuist I, charity to ourselves doth not more arm and enforce our hand, than charity to our neighbour holds it, and binds it up: we may not kill, lest the manslayer, dying in the attempt of this murder, should everlastingly perish. Surely, I cannot but admire this unreasonable mercy in a Father of the Society. Where was this consideration, when so many thousands of innocent persons were doomed to be

* Less. de Jur. &c. I. ii. c. 9. dubit. 8. Ex Antonio et Sylvestr. &c. t Ibid. paragr. ult. I Less. ibid.

blown up in a state of impenitence; whose unrepented heresy must needs have sent them up instantly to their hell?

By this reason, a malefactor, if he be obdured in his sin, and professeth to be remorseless, may not feel the stroke of justice.

Shortly, then, if a man will needs be wicked to my destruction, the evil is his own : let him bear his own guilt; let me look to my own indemnity.

The case is yet more difficult, where the attempt is not upon my person, but my goods. If a man will be offering to rob my house, or to take my purse, what may I do in this case ? Surely, neither charity nor justice can dissuade me from resisting: the laws of God and man will allow me to defend my owo: and if, in this resistance, the thief or burglayer miscarry, his blood will be upon his own head : although, in the mean time, charity forbids that this slaughter should be first in my intention; which is primarily bent upon my own safety, and the vindication of my own just property. The blood, that follows, is but the unwilling attendant of my defence : of the shedding whereof, God is so tender, that he ordained it only to be inoffensively done in a nightly robbery; Exod. xxii. 2, 3. where the purpose of the thief is likely to be more murderous, and the act more uncapable of restitution.

What, then, if the thief, after his robbery done, ceasing any further danger of violence, shall betake himself to his heels, and run away with my money ?-In such a case, if the sum be so considerable, as that it much imports my estate, however our municipal laws may censure it, with which, of old, even a killing, se defendendo, was no less than felony of death *: my conscience should not strike me, if I pursue him with all might; and, in hot chase, so strike him, as that, by this means, I disable him from a further escape, for the recovery of my own: and if, hereupon, his death shall follow, however I should pass with men, God and my own heart would acquit me.

Neither doubt I to say the like may be done, upon a forcible attempt of the violation of the chastity of either ses : a case long adjudged by the doom of nature itself, in Marius, the General of the Roman Army, as Cicero tells us t, clearly acquitting a young man for killing a Colonel, that would have forced him in this kind.

But I may not assent to Dominicus Bannez, Petrus Navarrus, and Cajetan I, though grave authors; who hold, that, if a man go about, upon false and deadly criminations, to suburn witnesses against me, to accuse me to a corrupted judge, with a purpose to take away my life, in a colour of justice, if I have no other way to avoid the malice, I may lawfully kill him. It were a woeful and dangerous case, if every man might be allowed to carve himself of justice. Mere accusations are no convictions. How know I, what God may work for me, on the Bench or at the Bar? what evidence he may raise, to clear me? what confusion or contradiction, he may cause in the mouths of the hired witnesses? what change he may work in the judge? what interposition of higher powers There is a Providence in this case to be relied upon, which can and will bring about his own holy purposes, without our presumptuous and unwarrantable undertakings.

* Dalton. p. 244. + Orat. pro Mil. . ii. c. 3. Less, I. ii. de Jure, &c. c. 9. dub, 8.

Bann. 9. 64. a. 7. dub. 9. Nar. * See Epistles. Decade iv. Ep. 2. EDITOR. + Rodrig. Sum. cas. Tom. I. cap. 73.

aking purposes, relied upon

CASE II. Whether may I lavefully make use of a duel, for the deciding of my

right, or the vindication of mine honour ? I have long ago spent my opinion upon this point, in a large epis. tolar discourse *, which I find no reason to alter. Thither, I might refer you, to spare my labour; but lest, perhaps, that should not be at hand, shortly thus :

The sword, in a private hand, was never ordained to be a decider of any controversies ; save this one, whether of the two is the better fencer: nor yet that always; since The race is not to the swift, nor the battle to the strong ; as Solomon hath observed; Eccl. ix. 11.

It can be no better, therefore, than a mere tempting of God, as Rodriguez justly censures it t, to put ourselves or our cause upon so unwarranted a trial.

I find but two practices of it in the records of Scripture.

The one, that famous challenge of Goliath, which that proud Philistine had not made, if he håd not presumed of his giantly strength and stature, so utterly unmatchable by all Israel (1 Sam. xvii. 24.), that the whole host was ready to give back upon his appearance. He knew the advantage so palpable, that none would dare to undertake the quarrel : and had still gone on to triumph over that trembling army, had not God's inexpected champion, by divine instinct, taken up the monster, and vanquished him; learing all but his head to bedung that earth, which had lately shaken at his terror.

The other was in that mortal quarrel betwist Joab and Abner, on the behalf of their two masters, David and Ishbosheth ; 2 Sam. in. 14: wherein Abner invites his rival in honour to a tragical play, as he terms it, a monomachy of twelve single combatants, on either part; which was so acted, that no man went victor away from that bloody theatre.

Only it is observable, that, in both these conflicts, still the challengers had the worst.

In imitation of which latter, I cannot allow that, which I find frequently done in the managing of public hostility; that some confident cavalier, out of mere bravery of spirit craves leave to put himself forth before both armies; and, as in way of preface to an ensuing battle, bids defiance to any antagonist: an act of more va

lour than judgment; whereof the undertaking is void of warrant, and the issue (lightly) of success : while it pleaseth God, commonly, to punish presumption with a foil; and the ominous miscarriage of one, proves a sad discouragement to many.

And, if single fortitude be not triable this way, much less justice, in causes litigious. To make the sword arbiter of such differences, were no better than to revive the old Ordalian trial, used by our Heathen Ancestors : since God hath no more ordained, nor promised, to bless the one than the other. And reason itself tells us, in how ill a condition that righteous cause is, which must be carried by the sharper weapon, the stronger arm, the skilfuller fencer.

Now, whereas there are two acts, as introductions into the field, a challenge and an acceptation; both of them have their guilt : but the former so much more, as it hath in it more provocation to evil.

I cannot, therefore, but wonder at and cry down the opinion of Bannez and Cajetan, that a man, slandered by an unjust accuser, may justly challenge him the field, and vindicate himself by the sword : a doctrine, which, if it were allowed and accordingly practised, besides that it would destroy the course of justice and wrest revenge out of the hands of the Almighty, were enough to make the world an Aceldama : for, who would not be his own judge, for the accusation ; and his own executioner for the revenge?

There may yet seem more innocence in the acceptation; which makes shew of a mere passive nature, and appears to be extorted by the insolence of a provoking adversary : whose pressures are wont to receive such construction, as that the challenged party refusing, upon what ground soever, is, in the vulgar opinion, proclaimed for base and recreant; and I must needs confess, the irritation diminisheth the offence. But, withal, however the Spanish and Italian Casuists, whose nations are wont to stand a little too highly upon the points of a mis-called honour, are wont to pass fair interpretations of the matter, I cannot but find it deeply guilty also : for, what is this other, than a consent to sin by engag. ing in blood ? which, by a man wise and conscionable, might be turned off with a just contempt, without imputation of cowardice; since the plea of conscience is able to bear down the vain fancies of idle sword-men: or, if that will not be taken, the false blurs, that are cast upon a worthy man's reputation by vulgar breath, deserve no entertainment but scorn : or, lastly, other means lie open to both parts, for the proof of a questioned valour, which, in a lawful way, the challenged is ready to embrace. He walks, not unprovided, about the business of his calling: if he be fairly set upon, on equal terms, he shall make no doubt to defend himself : but, to make a formal business of a quarrel on either part, and to agree upon a bargain of blood-shedding, is wicked and damnable ; and, though both should come fairly off, yet the very intention to kill is murder.

This case is so clear, that the Council of Trent * hath thought

* Conc, Tr. Sess. 25. Rodriguez. 'Tom. 1. c. 73. de Duello.

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