Front Page Titles (by Subject) Chapter IX: That a Judg who condemns an innocent Person, and acquits a Malefactor, sins not, provided he act according to Law. - A Philosophical Commentary on These Words of the Gospel, Luke 14.23, 'Compel Them to Come In, That My House May Be Full'
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Chapter IX: That a Judg who condemns an innocent Person, and acquits a Malefactor, sins not, provided he act according to Law. - Pierre Bayle, A Philosophical Commentary on These Words of the Gospel, Luke 14.23, ‘Compel Them to Come In, That My House May Be Full’ 
A Philosophical Commentary on These Words of the Gospel, Luke 14.23, ‘Compel Them to Come In, That My House May Be Full’, edited, with an Introduction by John Kilcullen and Chandran Kukathas (Indianapolis: Liberty Fund, 2005).
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That a Judg who condemns an innocent Person, and acquits a Malefactor, sins not, provided he act according to Law.
There wou’d be no need of discussing the Proposition which makes the Title of this Chapter, if Readers were always reasonable. But some there are so very difficult and so prepossess’d, that rather than own, either directly<574> by a sincere Confession, or indirectly and* interpretatively by not being able to answer a syllable, that they are convinc’d of their Error, they’l stand it out against the most evident Truths. It’s possible then, there may be those who’l maintain that a Judg in the Case before us sins mortally; and therefore that I prove nothing, in favor of those who shou’d condemn and punish the Orthodox, imagining in the Sincerity of their Souls, tho falsly, that they were Hereticks.
To give any kind of plausible color to this paultry Exception, they must needs suppose, that the Judg has fail’d of discovering the Fact, only because he’s under the power of some inordinate Passion, which obscures the Light of his Understanding; or at least is blamable in taking a charge upon him, which he knew, or ought to have known, that he was not thorowly qualify’d for. So that I am now oblig’d to make good these two things: first, that a Judg may very well be deceiv’d, tho free from all those inordinate Passions suppos’d in the Objection; next, that he may have a sufficient Capacity for the discharge of his place, tho he may not always be able to penetrate the Truth of a Fact.
Whether a Judg’s not discovering the Truth, be an argument that he is under the power of some wicked Passion?
With regard to this first Point, I wou’d fain know from my Adversarys, whether they believe<575> that all Ignorance and Error is a Consequence of Sin. If they answer me, Yes; I shall quickly shew ’em, that they are under the grossest Mistake.
Was not Adam, in a state of perfect Innocence, ignorant of infinite things; and did he not pass a false Judgment before ever he had sin’d? It’s manifest he had not actually committed Sin, when he first began to sin. Now he began to sin, by judging that what was reveal’d to him by God, was not more certain than what was told him by his Wife, or by affirming some other matter which was false. He therefore pass’d a false Judgment, which was not preceded by any Sin. It’s false then, that all Ignorance or Error proceeds from Sin. Why then shou’d we suppose, that all the wrong Sentences and Decrees of Judges proceed from some Sin?
Besides, if Jesus Christ, who was perfectly without Sin, was yet capable of seemingly doing what he had no design to do; Adam and his Posterity, tho they had preserv’d their Innocence, might undoubtedly have bin capable of sometimes making use of Signs, which had not bin certain Indications of their Thoughts. Now who doubts, but in these cases they might have led their Acquaintance or Friends into Judgments concerning ’em very wide of the Truth; just as Jesus Christ led those, who saw that he made as if he wou’d go on farther,209 into a belief that such was his intention? It’s certain then, that Men in a state of Innocence might deceive, and be deceiv’d in one another on several occasions, where no evil Motive might intervene; nor can this be contested, without<576> falling into this absurd Consequence, that nothing but Sin cou’d deprive us of the Gift of searching the Heart and Reins. A manifest Error! Neither Man nor Angel can know the Thoughts of the Heart, otherwise than by Signs of Institution, or some such other occasional Cause; and ’tis very possible for any created Intelligence to deceive another, by falsly employing these Signs. God alone, as he has a direct and intuitive Knowledg of the Modifications of Minds, cannot be deceiv’d by false Appearances.
From hence I conclude, that a Judg, tho ever so free from Passion, may yet fail of discovering a Truth of Fact. For as he is not able to read in the Hearts of the Accus’d and the Witnesses, he must have recourse to those Signs by which Men mutually discover their Thoughts: but all these Signs are equivocal, and Man has a thousand Folds, a thousand dark Corners in his Heart, and knows how to cover these over by a thousand Artifices and a thousand Lyes. They may therefore happen to deceive not only the most righteous Judges, but those also who have the greatest Talent at catching the Witnesses and the Accus’d in their own snare: and so far is an honest Man from being the best qualify’d to see thro all the wily Dissimulation of this sort of Men, that, on the contrary, a Person who from his own Experience were acquainted with all their Cheats, wou’d make much the abler Judg. Adam, as he came out of the hands of God, was a great deal easier impos’d on, than one who had liv’d a profess’d Rogue all his life long.<577>
I can hardly conceive, how almost all sort of Christians have suffer’d themselves to be drawn into this Notion, That nothing but Sin is the cause of our Ignorance. Because if we ever so little reflect on the manner in which our Soul is united to the Body, we may be convinc’d that there’s a downright necessity of its being mightily stinted, and very defective in its Attainments in Knowledg: for beside that this Union makes it depend, for its Thinking, on the Impressions made by outward Objects, and left in the Brain; there’s a necessity, on other accounts, of the Soul’s having numberless Thoughts which relate to the Preservation of the Body only: and these being only confus’d Sensations, or Passions which bear not a just Idea of any Object, such as it is in it self, here’s consequently the greatest part of our time taken up by Modifications which enlighten not, which enlarge not its true Knowledg, and which tempt it to judg of Objects upon false Appearances, without troubling it self to know what they really are in themselves. And on the other hand, its Dependence, as to its acting, on certain Impressions made in the Brain, stinting it still more by reason of that Limitation essential to all occasional Causes; there’s a further reason why its Lights shou’d be very narrow and indistinct. And what fills up the measure of its Ignorance, is, that we live to fifteen years of Age, and sometimes more, before we make the least use of our Reason, with regard to any real Improvement of the Understanding. For how is it with us before fifteen? We feel Hunger, Thirst, Heat, and Cold, or some other Inconvenience: We<578> have the pleasure of sucking the Breast, of being dandl’d in our Nurse’s Arms, of playing at Ball, of eating and drinking, &c. Then we learn our Mother Tongue, which gives those who rear us an opportunity of making us believe all the Nonsense they please. We learn to read and to write Latin and Greek, if you please: but all this does not take off our minds from a thousand little idle Pastimes, nor hinder our swallowing every silly Story that’s told us. Reason has not yet Strength enough to stand it out against any thing, or oppose the introducing of Error, unless where it concerns some Interest of the Flesh, or contradicts our own small Experience; as if any one shou’d go about to persuade us, that there’s no pleasure in drinking when a body is a-dry. By this we see, that Man before he’s aware is under the power of infinite Habits, which shrink his Soul to nothing, how great soever his Desire may afterwards be, of furnishing it with a vast Knowledg.
I am willing to believe, that if Adam had preserv’d his Innocence, things wou’d have gone better; but still Man had bin very much stinted in his Knowledg, because of the Union of the Soul with this portable Machine, and of the mean state of Reason for the first years of Life.
Shou’d any one not yield to these Reasons, I desire he wou’d tell me how he knows, that Sin and Ignorance are two things which naturally follow each other. Does he find any thing in the History of the Temptation, that induces him to think this; and wou’d not one much sooner infer from it, that the Fall of Adam rather increas’d his Knowledg? Or does he judg so, because he’s persuaded that the Devils have lost their Know-<579>ledg with their Holiness? But this is directly against the general Notion. We are told strange things of the Craft and Subtlety of the Devils, of the great Power of the Demons of the Air, in forming Thunder, Tempests, Hail, Pestilence; of their rendring themselves visible under all kind of Forms, and their imprinting several Motions in the Brain for the exciting our Passions. In a word, they who treat of the heavenly Hierarchy make no scruple to affirm, that a good Angel of an inferior Order engag’d with an evil Angel of a superior Order, wou’d be constantly worsted and overcome, if God did not interpose in an extraordinary manner. Which shews that the evil Angels are not by their Fall become inferior to the good, in point of Knowledg or Power, if taken in the same rank of the Hierarchy.
But not to go so high as the Angelick Nature, is it not well known, that David and Solomon lost not the least degree of Understanding, by falling into the most enormous Sins? Nor is there any better ground for thinking that Adam, after his Sin, had forgot a tittle of what he knew before, unless thro Length of Time, or the Infirmitys of old Age. Last of all, have we not daily Examples, that they who have the greatest share of Piety and Vertue, are for the most part incomparably more simple than the wickedest in their Generation? I can’t therefore see what ground there is, for this natural Connexion betwixt Sin and Ignorance.
Be that how it will, I don’t think any reasonable Man can deny what I am now to offer; to wit, That there are criminal Trials, in which the Charge and the Defence are sometimes<580> supported by such Probabilitys, such Proofs and Counterproofs, that a Judg who, far from inclining to favor the Accus’d, may have a mind to see him convicted, and even a suspicion of his Guilt, can’t however find ground enough to condemn him; but is oblig’d, against his Inclination and against his Suspicions, to acquit him, tho the Person is really guilty of the Fact. Now if when even Passion and Suspicion help to discover the Truth of Facts, we can’t notwithstanding come at it; how will it be, when we stand perfectly Neuters between the Accuser and the Accus’d? It can’t be deny’d, but there are Cases, in which the Judg is perfectly in such an Equilibrium.
And are not Civil Causes sometimes so puzzl’d by the Variety of Pleadings and Laws differently interpreted, that the most learned Judges in the Law, and the freest from all Partiality, can do no more than split the difference, or give it o’ that side which their Conscience tells ’em has the Right; tho the Court perhaps is far from being unanimously of their opinion, some thinking the Right in John o’ Nokes, and others in John o’ Stiles?
Sure I am, that whoever considers this matter aright will come into my sense of it, and allow, that in many cases where the Judg does not discover the true State of the Case, whether it be concerning Fact or Right, nor hit it to the exactest nicety; this proceeds not from any Obliquity in his Will, but from the Obscurity and Perplexity of the matter it self under examination.
Not that I wou’d hereby pretend, that there are not too many Judges, who not only betray the Lights of their Conscience, but who are also<581> Bubbles to their Passions; I mean, who by mere dint of wishing, from human Considerations, that such and such may or may not have the Right on their side, come at last to persuade themselves that it is really so.
Whether he who perceives not in himself a profound Knowledg, and very clear Understanding, is oblig’d to decline the Office of a Judg?
I now proceed to my second Point. We’l allow, say they, that a Judg who has not known how to convict a Person really guilty, might not have bin blinded by any unjustifiable Passion; yet you must allow us, that he wants a Capacity, and is therefore an ill Man in taking such an Office upon him, when conscious of his Unfitness for it.
I answer, and say this is a Cavil, which if People were govern’d by, the whole World must run into Anabaptism:210 no body wou’d be a Judg, and consequently Mankind must be left without the Administration of Justice; what they cou’d somewhat less dispense with than Religion. We must not therefore require so much from those who dedicate themselves to the Bench. I own, these two kinds of Qualifications are, generally speaking, indispensably necessary; in the first place, Integrity of Heart, a good Conscience, and clean Hands; and in the next place, a Skill in the Laws, and a sound Judgment: But of these Talents, the first sort is much more necessary than the latter, because there are a world of Causes in which common Good Sense and Judgment will suffice, with a moderate Skill<582> in the Laws; whereas there is no Cause, in which Uprightness and Integrity of Heart are not absolutely necessary. Provided then that a Judg, or Candidate for the Office, find that the ground of his Heart is right, and that he has a stedfast purpose of rendring to all their Due, and a steddy Resolution to go thro with the hearing and examining all Causes which come before him, and getting the best means of Information that he can; he may be assur’d he’s well enough qualify’d for the Office. And tho it might happen, that he has not quite so much Skill as another, in sifting by his Questions and Interrogatorys into the Truth of a Fact, obscure in it self, and boldly deny’d; yet is he not oblig’d in Honor or Conscience to resign his Place: because if so, there is not perhaps a Man in the world, who cou’d take the Office upon him with a good Conscience; since no Judg can be assur’d, that the Witnesses and Accus’d, which he interrogates, cou’d have conceal’d the Fact from another, if they had stood his Examination, with as good success as they have from him. This kind of Scruple wou’d reduce Men to very strange straits: for he who had the Law at his fingers ends, who had a clear Head, and was provided with a thousand Stratagems, for descrying the Truth thro all the Folds in the Heart of Man; must put off his Instalment, till morally assur’d there was not a Man upon earth who excel’d him in these Talents, and to whom he ought to make a tender of his Place, as the Objection I confute insinuates. All this is so absurd, that it wou’d not deserve a Confutation, were it not of some consequence to cut off my Adversarys from all their Retreats and Starting-<583>holes: Beside that it opens a way to some other things, which I shall have occasion to speak of hereafter.
One thing it mayn’t be amiss to observe; That good Sense and a sound Judgment are much better Qualifications in a Judg, than a lively, subtle, imaginative Wit, abounding with all the Flourish and Volubility of the Bar: We rarely see a Judg with these last Qualitys, who does not overshoot the Mark, and one way or other fall wide of the true pinch of the Difficulty. It shou’d also be remember’d, that no Judg can possibly be so adroit, but that those who have Causes before him, or their Abettors, may by their Contrivances, by their Knights of the Post and Ruffians, raise such a mist, as the most upright and most understanding Judges shall never be able to dispel. On the other hand, no Law, either human or divine, obliges any Person whatever, upon pain of mortal Sin, to have a vast deal of Wit, an extraordinary Memory, an incomparable Penetration, a noble Erudition. St. Paul does not require this, in him who desires the Office of a Bishop, tho the most difficult of any, seeing its Province is the Salvation of the Souls of Men; he requires in him several excellent moral Qualitys, and that he be fit to teach and to instruct, which imports Gentleness and Patience, and Clearness, much more than a Vastness of Understanding. And can we in reason require that of any Man, which is not in his own power; and which is not acquir’d either by Fasting, or Prayer, or Pains: the greatest part of Mankind being born with such Facultys, that if they study’d twelve hours a day,<584> they cou’d never acquire those extraordinary Talents? ’Tis true, every one ought to know his own Strength, and not take an Office upon him which he is not qualify’d for; but still he whose Attainments seem equal to what the Sphere he is in requires (and this is no such mighty matter in subaltern Judicatures, in which notwithstanding the Judges are oblig’d to take as much care, as if their Judgments were never to be rectify’d at a higher Tribunal) and who withal is conscious of his own Probity and Strength to apply himself diligently to his Function, ought not to deem himself unqualify’d.
A Confirmation of what has bin just now said, from a Parallel between Judges and Physicians.
To set this Answer of mine in a clearer light, I shall add one Remark more. Tho Physicians are not so necessary in a State as Judges, yet it’s certain we can’t do very well without ’em. There must therefore be great numbers of ’em in chief Citys, and some in the smaller: and consequently a Man may be a Physician with a good Conscience, tho he has not all the Skill and Judgment of Hippocrates or Galen; because ’twere impossible to find the thousandth part of the Physicians which the World has occasion for, if they must all be such Oracles as those two. For which reason, let a Man be ever so great a Wrangler, he can’t deny but where a Person has gone thro his Studys in the Schools, and commences Doctor of Physick after the requisite Forms, and has a sincere Design of improving himself by Study and Experience; he is fitly<585> and duly qualify’d to practise Physick. By a much stronger reason we may affirm, That in order to be a Judg, it’s sufficient if he has obtain’d his Certificates, or is arriv’d at such a Degree or Formality, after having pass’d thro the necessary Studys; and if he afterwards apply him, with a clear Conscience, to the examining the Causes which come before him to the best of his Skill. It was not without just grounds, that I made use of the Terms, by a much stronger Reason; because the State has much more need of Judges than Physicians, and because Judges are not so often call’d upon in Cases of Life and Death as they.
Neither is this all. The ablest and honestest Physician may happen sometimes to prescribe Remedys which kill his Patient; the nature of the Distemper being such, that by the course of the general Laws of the Communication of Motion, the Patient might have recover’d if he had not taken such a Potion, or if he had taken of a different kind from that which the Doctor prescrib’d. The famousest Physician perhaps in London or Paris, who has practis’d for many years, and with great Reputation, has happen’d to kill a hundred Patients in his time: Hereupon I appeal to the Conscience of any reasonable Man; Does he believe, these hundred Patients will be heard in a Charge of Murder against this Physician before the Throne of God, supposing they shou’d learn, by some Revelation, how the prescrib’d Remedy had occasion’d their Death by a Consequence of the Laws of Motion? Does he not on the contrary believe, that provided the Physician acted from a sincere Inten-<586>tion, and according to the Rules of his Art, and to the best of his Knowledg and Observation from Experience and Study, he shall be declar’d perfectly innocent of the Blood of these hundred Accusers, in the face of the World? I can’t conceive that a Man is so unreasonable, as to imagine that a Physician is accountable to God for the ill success of a Remedy, which he has prescrib’d upon the solidest Reasons in his Judgment: for saying, that if he had understood his Business better, he wou’d not have prescrib’d such a Remedy, is in effect banishing Physick out of the World; since ’tis impossible but the ablest Physician must be very often mistaken, as to the Consequences of his Prescriptions: and even Galen or Hippocrates, or in general the best Physician that ever was or ever shall be, might by this rule be condemn’d to Hell-flames, if he prescribe a Remedy which happens to kill the Patient. For, say they, according to this fine Notion, it is not enough that he has gone according to his Lights and his Conscience; if he had understood his Business, he had never prescrib’d such a Remedy. Nothing therefore being more ridiculous than this Reasoning, it follows, that a Physician kills his Patient innocently in the sight of God and Men, provided he does all in his power to recover him.
The reason of this undoubtedly lies in the profound Obscurity of human Distempers, and of Accidents resulting in the Machine of the Body from the Operation of such and such Remedys, in consequence of several inward Dispositions, which are not discoverable till the Physick takes place, nor cou’d be judg’d of by any out-<587>ward Symptom or Indication. These unforeseen Accidents, this Concurrence of several unlook’d for Causes, is that which renders Physick in the hands of the ablest Doctors no better than a conjectural Science, which often deceives; and Men may read over Volumes, improve in Anatomy, add new Discoverys and Experiences to those of former Ages, Nature will still be incomparably more exquisite in forming new Distempers, than the Art of Man in curing ’em: just as the crafty Malice of Men will, as long as the World lasts, get sometimes the better of all the Sagacity of the ablest Judges.
I don’t by this Parallel pretend, that civil or criminal Causes are as hard to be judg’d of as Distempers; but I think I may without rashness say, that the Fact is in some Cases as hard to be discover’d as the Distemper. For we have natural Signs and Symptoms of Distempers, which depend not on the Artifices of the human Mind, nor can possibly be render’d equivocal; and Physicians can besides borrow great Lights from the Answers of the Patient, who in his Sickness will hide nothing: whereas the Accus’d and the Witnesses falsify and pervert the Use of the most sacred Signs, and give no Answers to the Judg’s Interrogatorys, but what are enough to puzzle and confound him. So that I see no reason why a Judg may not sometimes be as excusable before God, in putting the Innocent to death, and acquitting the Guilty, as a Physician in prescribing a Remedy which kills his Patient.
Thus I have, beyond all exception, asserted the Innocence of Judges, whom I had pitch’d upon for my running Comparison; and consequently<588> have sufficiently supported my Proof. But to give it the finishing stroke, let’s examine another Disparity which our Adversarys insist on.
[* ]We must not understand this in the rigor; for I’l allow there are those who don’t know how to answer an Objection, and yet are as much persuaded as ever, that they have reason o’ their side.
[209. ]Luke 24:28.
[210. ]Some members of the Anabaptist sect taught that Christians should not hold civil authority. See Lecler, op. cit., vol. 1, p. 204.