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A46904 The judge's authority or constitution a sermon preached in the Cathedral Church of St. Peter in York, upon Monday the 7th day of March 1669/70, at the assizes holden for that county before the Right Honourable Baron Littleton, the Right WOrshipfull Sr. Philip Monckton, Knight, being High-sheriff of Yorkshire / by James Johnson ... Johnson, James, 1639 or 40-1704. 1670 (1670) Wing J777; ESTC R3892 21,460 41

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Abiram who set themselves up not onely against Aaron the Priest but against Moses the Magistrate and thought both of them took too much upon them to lift themselves above the congregation of the Lord and therefore they both envied Aaron his Priesthood and Moses his Authority they would neither hear Aaron's bells nor kiss Moses's rod neither give ear to the one nor obedience to the other But let these spurn at this authority in their pride or reject it in their folly yet it is the power of God and the ordinance of God Governours says the Apostle are sent by God this is their commission By me Kings reign and Princes decree justice By me Princes rule and Nobles even all the Judges of the earth The Magistrate is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Minister of God says Saint Paul a revenger to execute wrath upon him that doeth evil It is the divine authority which makes that justice in the Magistrate which would be cruelty and murder in another and who shall tax his obedience to that authority to be criminal or faulty The divine providence hath not intrusted the Sword of Justice in every private man's hand if it were so placed how soon would each man like Cain upon any distast sheath it in his Brothers bowels and make it drunk with the blood of revenge If every one might be the righter of himself and revenger of his own wrongs the world would soon become an Aceldama a field of blood and therefore God who hath prohibited all private Christians who are naturally partial in their own causes to avenge themselves hath authorized the publick Magistrate with his Commission to be the avenger of wrath or as Saint Peter speaks to be for the punishment of evil doers and for the praise of them that do well for this end are Judges and Officers constituted and appointed Judges and Officers shalt thou make thee and they shall judge the people which is the second thing propounded 2. Judicii executio the execution of Judgement The original word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to Judge signifies both jus dicere and exequi to determine what 's right and to execute what 's so determined the first is a decree of Judgement the second is the execution of that decree the first is an act of skill or understanding the second an act of courage and resolution both which are requisite in him that judges the act of judging supposes ability and skill in him that undertakes it hence Judges were anciently called Cognitores and cognoscere in approved Authours is as much as to do the office of a Judge as Seneca si judicas cognosce 't is a necessary qualification to be able to know the truth that so in difficult and intricate cases covered with darkness and obscurity perplexed with windings and turnings overlaid with cunning and crafty conveyances they may extricate and find out that which would otherwise be lost in a maze and labyrinth set free and deliver that truth which otherwise would be shackled and imprisoned necessary to which is the examination of witnesses and hearing evidences and considering allegations and weighing circumstances and putting in cross interrogatories and making queries and raising doubts to over-weigh and out-balance the craft and subtilty of those who of purpose involve the truth of things with falshoods and deceits all which as they are necessary to a right determination so they are onely subservient to a due execution the other acts are lame and imperfect without this to compleat and finish them This is that which adds life and strength to the laws without which notwithstanding all the other formalities they would die and languish by execution the Judge breaths life into them and is therefore called by the Philosopher 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and by some of the Ancients 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the living law Execution of laws is as necessary as the promulgation or constitution of them God hath put a sword into the Magistrate's hand for this end and he expects he should not bear it in vain not bear it onely for honour or safety to himself but to strike fear and terrour into offendours Rulers are not a terrour to good works but for evil not to bear it as a badge and ensigne of authority but to draw it out as an instrument of justice and severity Where there wants execution there wants not transgression impunity encourages to all iniquity not to light slips onely but to gross enormities so that according to the Rabinical proverb 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 transgressours need a Session-house the laws suffice not to keep men in due bounds the Judge must necessarily exert his power to execute the laws and he that does not this at the same time both robs the law of that defence which should secure it and himself of that innocency which should protect him for he that punishes not those faults which are in offendours thereby transferrs them upon himself the guilt is devolved upon his head who by punishing it in some should have prevented it in others To which purpose is that story of Lewis King of France who being at his devotions was solicited by a Courtier to pardon a malefactour that was found guilty of death the King without any more ado made a sign with his head that he granted his suit but presently after chancing to read a verse of the 106. Psalm containing these words Blessed are they that keep judgement and he that doth righteousness at all times he bid call him again to whom he had granted the pardon and disanulled it with this memorable Apophthegm viz. The Prince that can punish a fault and doth not punish it is no less guilty before God than the offender himself According to which was the wise answer of a certain fool or Jester made to a King of the same land who found fault with a Courtier that had begged pardon of him saying that this was the third murder he had committed nay King quoth the Jester this suiter hath committed but one of the murders it is thou that art guilty of the second and third for if thou hadst not granted him pardon for the first he had not lived to have done any more It was his first pardon which promised him so much security as encouraged him to commit the like enormity Thus according to that principlein moral policy an ill executour of the laws is worse in a state than a great transgressour of them It is the non-execution of laws that is the cause of so frequent breach of them for those the neglects whereof are the severeliest punished are the least violated else why are murders and robberies though too oft yet more rarely committed than those common sins of drunkenness whoredom and the like but that the laws are put in execution against the former but scarce or not at all against the latter such a connivence at