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share. " Nihil profecto immitius," says A. Gellius ; e " nisi,
ut reipsa apparet, eo consilio tanta immanitas poense denun-
ciata est, ne ad earn unquam perveniretur." It was an into-
lerable and cruel justice, and only therefore published in so
great a terror, that it might never be put in execution ; and
indeed, as he observes, it was neyer practised.

6. But " addici nunc et vinciri multos videmus," saith he ;
that was the next cruelty : the debtors were sold, and all their
goods; even kings, subject to the Roman empire, were, with
their crowns and purple, their sceptre and royal ensigns,
published by the crier, and made slaves to pay their debts.

e Lib. xx. c. 1. Oiselii, p. 1106.



AND TRIBUTARY. 407

The King of Cyprus was so used, as Cicero, in his oration
' proSextio,' sadly complains. The dividing the body of the
debtor was changed into the dividing of his goods ; but this
also was hateful, and complained of by wise and good men :
" Si funus id habendum sit, quo non amici conveniunt ad ex-
sequias cohonestandas, sed bonorum emptores, ut carnifices,
ad reliquias vitae lacerandas et distrahendas," said Cicero : f
and JManlius, most worthily, seeing a Roman led to prison
like a slave for debt, cried out, g "Turn vero ego nequidquam
hac dextra Capitoliuui arcemque servaverim, si civeni com-
militonemque meum, tanquam Gallis victoribus captum, in
servitutem ac vincula duci videam? To what purpose did I
save the Capitol, if a citizen and my fellow-soldier shall for
debt be made a slave, as if he were taken prisoner by the
Gauls?" and therefore he paid the debt and dismissed the
prisoner.

7. But because this was cruel and inhuman, when Peti-
lius and Papirius were consuls, a law was made that all the
goods and possessions of the debtors should be obnoxious to
the creditors, but not his body ; but yet, so that the debtors
did work for their creditors, but not in chains ; and this
lasted till the ' lex Julia' decreed, in Augustus's time, that
the insolvent debtors might quit all their goods, but neither
suffer chains nor slavery, nor do labour for their creditors ;
but the benefit of this law h extended not to prodigal and vain
persons, but to those only " qui vi majore aliqua fortunis
evertebantur" (that was their word), " who were undone by
any great violence," by shipwreck, or fire, or any accident
unavoidable. For as for others, they were delivered to the
capital triumvirate and punished ' ad columnam Maenianam,'
that is, whipped extremely ; and this continued under the
time of Gratian the emperor, who decreed 1 that such debtors
who were not " eversi per vim majorem," should not receive
any benefit by quitting all their goods; but if they were
less than their debt, " ad redditionem debitse quantitatis
congrua atque dignissima suppliciorum acerbitate cogantur ;
they should be compelled by torment to pay a due
proportion : "* and in this there might be severity ; but it

f Pro Quintio, c. xv. Beck, vol.i. p. 19.

* Liv.lib. vi. c. xiv. Ruperti, vol. i. p. 441.

h Lib. i. Cod. Theod. ' Vide Raevardum ad LI. 22. Tabul. c. viii.

i Lib. i. Cod. Theod. qui bon. ex leg. Jul. ced. et 1. si victum ff. de re Judic.



408 OF LAWS PENAL

had in it very much of justice. But for the other part of it,
of the entire cession of goods, and that the insolvent miser-
able debtor should be exposed to starving, this had neither
charity in it nor justice ; and therefore, after much complain-
ing, and attempts of ease, it was wholly taken away k by
the Emperors Constantine, Gratian, and Justinian : liov ya
Sixaiov rkv Va Jx r&y 0vfAsqx,6ros Kai ou pqd'ji&fq ffaeadi-
bcij,wr} ixrbg ruv aurou ytyovora, avdi; dtf^.u-ova rbv (3tov sauru
<raeari0zvui, xai rJjj ttpqfAigov rcopJjj, xai rri; rs rou ffw/xaroj
ffxsKTig e%u (3iaiu$ xaracrr^ar " It is infinitely unjust that
he who is fallen into poverty without his fault, should
be constrained to live a shameful life, without his daily
bread, and the necessary provisions for his back:" and
then it was ordered that if the debtor did ' ejurare bonam
copiam,' that is, ' swear that he had not goods sufficient to
pay the debt,' he should be free.

8. This was made into a law long before the time of
Gratian ; when Sylla was dictator, Popilius demanded, and
it was decreed. But tyrants usually make good laws, and
after they are dead are so hated, that even their good laws
are sometimes the less regarded : and so it happened in this
particular; insomuch that Cicero 1 spake against L. Flaccus
for desiring to have Sylla's laws confirmed. But it soon
expired through the power of the rich usurers, as we find by
the complaint ofC. Manlius in Sallust; m and even so long as
the 'lex Popilia' did prevail, yet they had arts to elude it:
for though they could not bind the debtors in public prisons,
yet they would detain them in their own houses ; and though
it was a great and an illegal violence, yet the poor man's case
is last of all heard, and commonly the advocates and judges
have something else to do.

9. This is a perfect narrative of this affair ; in all which
it is apparent, that wise and good men did infinitely condemn
the cruel and unjust usage of insolvent debtors, who were
' per vim majorem eversi,' not poor by vice, but misfortune
and the Divine Providence. The violence and the injury are
against natural justice and humanity, or that natural pity
which God hath placed in the bowels of mankind ; as ap-
pears by the endeavours of the wiser Romans to correct the

k Lib. ii. cap. de Exact. Tribut. lib. x. ' In Rullum.

m In Catilm. c. xxxiii. Bipont, p. 26.



AND TRIBUTARY. 409

cruelty of creditors. But the debtors, though by degrees
eased, yet were not righted till Christianity made the laws, and
saw justice and mercy done. St. Ambrose" complained most
bitterly of the creditors in his time; " Vidi ego pauperem
duci, durn cogeretur solvere quod non habebat ; trahi ad car-
cerem quia vinum deesset ad rnensam potentis; deducere in
auctionem filios suos, ut ad tempus posnam differre pjssit:
inventum forte aliquem qui in ilia necessitate subveniret,"
&c. " I have seen a poor man compelled to pay what he had
not to pay, and dragged to prison because his creditor had
not wine enough to drink; and, to defer his punishment
awhile, forced to sell his sons at an outcry." " Grandis
culpa est (saith he), si te sciente fidelis egeat, si scias eum
sine sumptu esse, fame laborare, et non adjuves; si sit in
carcere, et poenis et suppliciis, propter debitum aliquod, Justus
excrucietur ; It is a great fault, if, when you know it, you
suffer a faithful man to want meat and provisions; if a just
or good man be in prison, and in chains or torments, for debt."
Now if persons, not interested in the debt, might not suffer
such a thing to be and abide, much less might any man do
such a thing. If every man that could, was bound to take
off the evil, it is certain it was infinitely unlawful to inflict or
to lay it on : and therefore the remains of this barbarity and
inhumanity amongst us, do so little argue Christianity to
be amongst us, that it plainly proves that our religion hath
not prevailed so far upon us as to take off our inhumanity.

10. Of the same nature is that barbarous custom of arrest-
ing dead bodies, and denying them the natural rights of burial
till a debt be paid. Ascelinus Fitz Arthur arrested the body
of William, duke of Normandy, conqueror of England, upon
something a like account. But St. Ambrose p blames such
unnatural cruelty, and derides the folly of it ; " Quoties
vidi a foeneratoribus teneri defunctos pro pignore, et negari
tumulum dum foenus exposcitur? Quibus ego acquiescens
dixi,Teuete reum vestrum, et ne possit elabi, domum ducite;
claudite in cubiculo isto, carnificibus duriores: quoniaui
quern vos tenetis, career non suscipit, exactor absolvit ;
To them who seized on dead bodies for their debt, I called
out, Hold fast your debtor, carry him home lest he run away,
O ye that are more cruel than hangmen." But of this sufficient;

Lib. de Nabuth. c. 5. Offic. lib. i. P Lib. de Tobia, c. 10.



410 OF LAWS PENAL

for whatsoever is against the law of nature, to have named
it is to have reproved it. Only there is one case in which,
if dead bodies be arrested for debt, I cannot so much com-
plain of it ; and that is in the customs of France, where they
never imprison any alive for debt, unless he be expressly con-
demned to it by the sentence of the judge, or contracted upon
those terms with the creditor : but when the man is dead
tbey lay their claim, because they cannot hurt the man.
This I find in Gasper Beatius, who cites these verses for it
out of Johannes Girardus, an ill poet but a good lawyer:

Heus principes, dnodecim
Tabulae, inopem crudeliter
Quae debitorem dissecant,
Aut jura, mores publici,
Quse carceribus ilium misere
Et opprimunt et enecant,
Nimis mihi, nimis displicent.
Qui Gallum babuit mos, bonus
Idem et verus probabitur
Nimis mibi cuique et bono,
Quo creditores debita
Petant sibi post funera.

But I suppose he might speak this in jest, to represent the
lenity of Frenchmen in not casting their debtors into prison.
But if a debtor should, as Argyropilus, jesting at his death,
make his rich friends the heirs of all his debts, it would
spoil the jest.

Now I return to the other inquiries of the rule.

11. The second inquiry is concerning persons conjunct
by nature ; Whether, for example's sake, sons or nephews
can be punished for the faults and offences of their fathers
and grandfathers? Concerning this, I find Paulus the law-
yer and Baldus speaking exact antinomies. For Baldus q
affirms, " Haeredem teneri ad poenam, ad quam defunctus
fuerat condemnatus; The heir of his father inherits his
father's punishment :" but Paulus r says expressly, " Haere-
dem non teneri ad poenam defuncti ; The heir is not bound
to suffer the punishment of the dead." But they are both in
the right: for the heir is not tied to suffer the corporal
punishment to which his father was condemned, because
his father had no dominion over his son's body or his own ;

9 In 1. id quod Pauperibus, qu. 9. C. de Episcopis Clericis.
r In 1. si Poena, ff. de Poenis.



AND TRIBUTARY. 411

but over his goods he hath, and therefore can transmit these
with their proper burden : and therefore the heir is liahle to
pay the fine to which his father was sentenced, and to pay
his father's debts, and is liable to the same compulsion, with
this only caution, that if the father be under torment or
imprisonment for insolvency, the son be no way obliged to
that ; because, whether the insolvency of the father be by his
fault or misfortune, still the son is not obliged : for as he is
not bound by his father's personal fault to suffer punishment,
so neither for his misfortune can he be obliged beyond the
suffering of a descending poverty. If his father was insol-
vent by his crime, the punishment was to go no further than
the fault, and therefore no torment was entailed ; but if he
were insolvent by misfortune, neither the father nor the son
for that could deserve any further evil : and if the father
transmitted no goods, no advantage to the son, there is no
reason he should transmit a burden : " Nemo fiat deterior
per quern melior factus non est," says the law. And there-
fore St. Ambrose 8 complained of a sad sight he saw ; " Vidi
ego miserabile spectaculum, liberos pro paterno debito in
auctionern deduci, et teneri calamitatis haeredes, qui non
essent participes successionis, et hoc tarn immane flagitium
non erubescere creditorem ; I have seen sons sold slaves
for their fathers' debt, from whom they were never like to
receive an inheritance ;" and which is yet more strange, " the
creditors were not ashamed of the impious cruelty." But
this is a ruled case both in divinity and law. " Nunquain
unus pro alio potest poena corporis puniri," said Alexander
of Hales, 1 and Thomas Aquinas;" " No man can suffer cor-
poral punishment in the place of another:" the same with
that in the law. v And therefore of all things in the world,
conjunction of nature, which should be a means of endear-
ment and the most profitable communications, ought not to
be an instrument of the communication of evil : " Unius fac-
tum alteri, qui nihil fecit, non nocet." w And again : x " Pec-
cata suos teneant auctores, nee ulterius progrediatur metus,
quaiu reperiatur delictum." But it is expressly instanced

Lib. de Tobia, c,8. 3 p. q. 41. in 4. a 4. corollar. 3.

D In 2. 2ae. q. 180. a. 4. ad. 2. T L. Crimen ff. de Poenis.

w L. de Pupillo, 5. sect. Si. Plurium. ff. Nov. op. nunt.
1 L. Sancimus, 22. cap. de Poenis.



412 OF LAWS PENAL

in this matter of succession ; " Unusquisque ex suo admisso
pcense subjiciatur, nee alieni criminis successor teneatur,
The son may succeed in his father's burdens and misfortunes,
but not in his crimes or corporal punishments."*

12. And this is the measure of the third inquiry. For
they who are conjunct in crime are equally obnoxious to
punishment: and therefore if one be punished for the fault
of another, it is just to him that is punished, and mercy to
them that are spared. For when all are criminal, all are
liable to punishment, and sometimes all do suffer. So did
the Campanian legion z that rebelled at Rhegium, and pos-
sessed the town for ten years ; they suffered every man, four
thousand heads paid for it. So did the ninth legion under
Julius, and the tenth legion under Augustus, every man was
punished. 3 For the rule of the law b is, " Quod a pluribus
pro indiviso commissum est, singulos in solidum obligat;
When every man consents to the whole crime, every man
is wholly criminal." If ten thieves carry away a load of
iron, every man is tied to the punishment of the whole. But
sometimes only the principals are punished. Thus at Capua c
seventy princes of the senate were put to death for rebelling
against the Romans, and three hundred of the nobility were
imprisoned, and two hundred and twenty-five of the Sorani.
And this way is often taken by princes, and wise generals,
and republics, " ut unde culpa orta esset, ibi poena con-
sisteret." And C. Decimius d was heard with great applause,
when, in the case of the Rhodians, he affirmed, that the fault
was not in the people, but in their principals and incendi-
aries; meaning, it was not so in the people as in their leaders.
And in tumults it often happens, as it did at Ephesus when
St. Paul had almost been torn in pieces with the people :
" the greater part knew not why they were come together,"
but all were in the tumult; and in such cases it is justice
that one be punished for many, a few for all : and therefore
St. Ambrose did highly reprove Theodosius the emperor for
killing seven thousand of the Thessalonians for a tumultuary
rescuing a criminal from the hand of the magistrate, and

* L. Crimea, ff. eod. * Liv. xxviii. 29.

* Sueton. in Julio, c. Ixix. in August, c. xxiv.

b L. semper, sect. 2. ff. Quod, vi aut cl. et 1. item Mela, sect. 2. ff. ad legem
Aquiliam. c Livius, lib. xxxvi. d Lib. xlv. 10.



AND TRIBUTARY. 413

killing the governor and some great officers in the sedition.
Sometimes the criminals were decimated by lot, as appears
in Polybius, 8 Tacitus/ Plutarch, g Appian, h Dio, 1 Julius
Capitolinus, j who also mentions a centesimation. And the
reason of this equity Cicero k well discourses in his oration,
' pro Cluentio,' " ut metus ad omnes, poena ad paucos per-
veniret; that some may be punished, and all may be
made to fear : for the soldiers being made to fear the bigger
fear of their general, would never fear the less fear of the
enemy," who does not strike so surely as the executioner ;
and therefore they might afterward become good men and
good citizens. But because in public offences the cases may
be different, they are by this measure reduced to reason.

13. If the tumult or war be by the command of magistrates,
the people are to be affrighted, or admonished, but the com-
manders only are to be punished, " Ne alieni admissi poenam
luant, quos nulla contingit culpa." 1 For the people are soon
commanded by him that stands next above them. And there-
fore since to obey is like a duty, it is not easily to be reckoned
to a real crime, and the greatest punishment.

14. But if the fault be done by the people without au-
thority or excuse, but just as fire burns a house by chance,
or water breaks a dam by its mere weight, then it is to be
considered whether the criminals be many or few ; if few,
they may all be punished without breach of equity, upon the
account of the rule of the law, 1 " " Quae poana delictis im-
posita est, si plures deliquerint, a singulis in solidum debe-
tur." But if many were in the crime, then the rule of equity
and the gentleness of the law n are to take place, " Ut poenae
interpretatione potius molliantur, quam exasperentur ;" a few
should be punished for all the rest, " ut supersint quos pec-
casse poeniteat." For it is of great avail for the public in-
terest, that as some be cut off, so some should remain alive,
that they may repent. And in this sense is that of Lucan,'

Quicquid multis peccatur, inultum est.

Besides that it is evil to the commonwealth to lose so many
subjects ; it is also sometimes dangerous ;

e Lib. Hist. vi. f Lib.i. 37. f In Crasso.

h Civil, ii. I Lib. xlviii. J In Opilio Macrone.

k C. ilvi. Beck, vol. iii. p. 105. ' L. ult. ff. de Bon. Damnat.

m L. item Mela. ff. ad Leg. Aquil. Leg. Pcen. ff. de Poenis.

Phars. v. 260. Oudendorp, p. 360.



414 OF LAWS PENAL

Sed illos

Defendit num D rus junctaeque umbone phalanges.P

The determination of these two particulars I learn from
Cicero q in his oration ' pro Flacco :' " Vobis autem est confi-
tendum : si consiliis principuin vestrse civitates reguntur, non
multitudinis temeritate, optimatum consilio bellum ab istis
civitatibus cum populo Romano esse susceptum ; If the
nobles govern your cities, then the nobles made the war, and
the people are innocent :" " sin ille turn motus est temeritate
imperitorum excitatus, patimini, me delicta vulgi a publica
causa separare ; but if the rabble did the fault, the city is
not to be punished ; it is not a public offence :" ** Multitude
peccavit, sed non universitas." For a rabble does not make
a city, a people, or a republic ; for to make this, it must be
" ccetus qui jure aliquo continetur," r a multitude under
government, and a legal head.

15. But if both the magistrates and the people be in the
offence, " culpa est penes paucos concitores vulgi," said C.
Decimius ; it is better that the ringleaders and the boute-
feus should lie at stake, and feel the severity, while the others
are instructed and preserved by the gentleness of laws and
princes.

There are some other questions and cases of conscience
concerning penal laws ; but they can, with more propriety, be
handled under other titles, and therefore I shall refer them
to their several places. But for the likeness of the matter, I
have here subjoined some rules concerning the measures and
obligations of conscience in the matter and laws of tribute.



RULE VIII.

OF LAWS OF TRIBUTE.

The Laws of Tribute are moral Laws, and not penal, except
it be by Accident ; and therefore do oblige the Conscience
to an active obedience.

1. HIM to whom we pay tribute we owe obedience to. It
is St. Paul's 3 argument to prove that we ought to obey the

P Juv. ii. 45. Ruperti. Cap. xxiv. Beck, vol. iv. p. 61.

r L. Mentum. sect. Animadvertendum. ff. quod met caus. * Rom. xiii.



AND TRIBUTARY. 415

powers that are set over us, because to them we pay tribute ;
which tribute is not introduced by tyranny, but is part of that
economy by which God governs the world, by his deputies
and lieutenants, the kings and princes of the earth. " Neque
quies gentium sine armis, neque arma sine stipendiis, nee sti-
pendia sine tributis haberi queunt/'said Tacitus ; b " No peace
without laws ; no laws without a coercitive power ; no power
without guards and soldiers ; c no guards without pay :" and
that the soldiery may be paid, and the laws reverenced, and
the power feared, and every man's right be secured, it is
necessary that there be tribute. " Ut sit ornamentum pacis,
subsidium belli et nervus reip. tributum est pecunia populo
imperata, quae tributim a singulis proportione census exige-
batur," said Varro. But besides this, the very paying tribute
is the sign and publication of our subjection. It is giving
him that which is his own : for he that coins the money,
hath the power of the law, and this from the custom of the
world for many ages. The Persians first imprinted the figure
of their prince upon their money, after them the Greeks :
hence were those names of coin, the darics and philippics ;
for the money having the impress and figure of the prince,
the name and the value from the prince, is a seizure and
solemn investiture in the government of that people; and our
blessed Lord was pleased from hence to argue, that there-
fore they ought to pay tribute to Caesar; because what way
soever he came first to it, Christ does not there dispute,
but he was over them, and he protected them in peace,
righted their causes, relieved their oppressions, stamped
their money, gave value to that, and protection to them, and
therefore they were bound to pay their tribute. It was ' res
Caesaris,' as he was pleased to call it, ' the things of Caesar ;'
it was due to him for the public ministry of justice : and this
is also urged by St. Paul ; " for they are God's ministers,
watching for this very thing," that is, for your good ; and
therefore are to be maintained according to the dignity of
that ministration.

2. Now as we owe tribute to whom we owe obedience,
so we owe obedience to whom we owe tribute : that is, if we

b Histor. iv. c. 74. Oberlin. vol. ii. p. 307. Lond. ed.
c Ad hoc tributa praestamus, ut propter uecessaria militi stipendium praebeatur.
S. Aug. lib. xxii. c. 74. Cap. Faust. Manich. Cicero pro lege Manilia.



416 OF LAWS PENAL

have authority to exact tribute, we are bound in conscience
to pay it. It is a law as much obliging the conscience as any
other. Numus ox Nummus from Numa, say the Roman
critics ; because King Numa first stamped money against
them. But I suppose it is from a Greek fountain, Numus
and Numisma from no>/<j/ta, and that, says Aristotle, d is a-ri
row vo/ioy, " from the law :" for he that stamps money gives
the law ; and amongst others, and for the defence of all
laws, this law of paying money to him by way of tribute is
obligatory.

3. And the case does not differ by what name soever it be
imposed : * vectigal,' ' tributum,' ' census,' rsXoj, posoj, were
the words amongst the Greeks and Latins, and did signify
portions of money paid from lands, from merchandise, for
heads, ' excisum quid, something that is cut off' from the
whole, for the preservation of the rest ; that is excise-money :
but whatever the words be, St. Paul reckons them all to be
ra$ o<pu\a$, due debt:' and therefore axob<>rt, saith our
blessed Lord ; e 'Ax6&ore, saith St. Paul, ' Restore or pay it ;' it
is a debt due by the ordinance of God. It is all but tribute ;
even the census or poll-money is tribute ; so it is called by
Ulpian/ " tributum capitis; the tribute of the head." The
same use of the ^ ord I have observed out of Ammianus and
Tertullian. This I the rather note, that I might represent
the obligation to be all one by the law of God, though the
imposition be odious, and of ill name amongst the people,
according to that saying of Tertullian; 8 "Si agri tributo
onusti viliores, hominum capita stipendia censa ignobiliora,
Fields under contribution are cheaper, and men under a tax
are more ignoble." * Angaria' is another sort of tribute ; an
imposition of work and upon the labours of the subject. It
is indeed the worst and the most vexatious ; but it is ' species
tributi, a kind of tribute,' and due by the laws of religion,
where it is due by the laws of the nation : and therefore those
persons are very regardless of their eternal interest, who
think it lawful prize whatever they can take from the cus-
tom-house ; whereas the paying of tribute is an instance of
that obedience which is due to them that are set over us,
" not only for wrath, but also for conscience' sake ;" and St.

d Ethic, v. c. 5. Wilkinson, p. 203. e Matt. xxii. 21. Rom. liii. 7.

' Lib. iii. ff. de Censibus. * In Apolog.



AND TRIBUTARY. 417

Paul never uses the word ' conscience,' but when it is the
concern of a soul. It is St. Ambrose's 11 observation, who
also uses this argument, " Magnum quidem est et spirltuale



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