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documentum, quo Christiani viri sublimioribus potestatibus
docentur esse subject], ne quis constitutionem terreni regis
putet esse solvendum ? Si enim censum Dei Filius solvit, quis
tu tantus es qui non putes esse solvendum ? It is a great
and a 'spiritual doctrine, that Christians be subject to the
higher powers. For if Christ paid tribute, what art thou,
how great, how mighty, that thou thinkest thou art not
obliged ?"



RULE IX.

The Laws of Tribute have the same Conditions, Causes, Powers,
and Measures, with other Laws of Government.

1. THIS rule requires, that 3 the authority be supreme, that
the cause be just, that the end be public, that the good
be general, that the people receive advantage. Which is
to be understood of tribute, which is not penal, nor compen-
satory. For sometimes tributes are imposed upon a con-
quered people 6 as fetters- upon a fugitive, to load him that
he run away no more ; or to make amends for the charges of
a war. If they were in fault, they must bear the punish-
ment; if they did the evil, they must suffer the evil; that,
at the charge of the conquered, themselves also shall enjoy
peace. So Petilius said to the Gauls ; c " Nos, quamquam
totiens lacessiti, jure victoriae id solum vobis addidimus, quo
pacem tueremur; You have provoked us, and we have
conquered you ; and yet have only imposed the punishment
of so much tribute on you, that at your charge we will keep

h In 1 Reg. 1-1. 11. q. 1. c. 28.

& Yectigalia, sine imperatorum praecepto, neque praesidi, neque cnratori, neqne
curia? constituere, nee prascedentiae reformare, et his vel addere, vel diminuere
licet : ff. de Publican, lib. x. Yectigalia nova nee decreto civitatum institui pos-
sunt, Sever. C. de Vectigal. Nov. Instit. non poss. lib. ii. ; et Gallien. 1. seq. ait,
Non solent nova vectigalia inconsultis principibus iastitui. Placet nullum omnino
judicem decatero provincialibus inferendum aliquid indicere.utea tantum sedulo
cunctorum studio pensitentur, qua> canonis instituti forma complectitur, vel nostra
dementia decernit inferenda, vel delegatione solemniter sanciente, vel epistolis
prascedentibus : Constantin. lib. viii. c. de Excusat. mun. lib. x.

b Deut. xx. 11.

c Tacit Histor. iv. c. 74. Brotier, Valpy'a ed. vol. iii. p. 328.
VOL. XIII. E E



418 OF LAWS PENAL

the peace." So concerning the Greeks d Cicero affirms, that
they ought to pay some part of their fruits, that, at their own
expenses, they be restrained from undoing themselves by
civil wars.

2. But then this is at the mercy and good-will of the
conqueror ; for the tribute he imposes upon them as punish-
ment, he is so the Lord of it, that however he dispose of it,
it must be truly paid. And the same is the case of a tri-
bute, imposed by way of fine upon a city or society : the
Supreme Power is not bound to dispense that in public uses ;
and if he does not, yet the subject is not at liberty in his
conscience, whether he will pay it or no. For, in this case,
it is not a law of manners, but of empire ; and is a private
perquisite of the prince, as the prince himself can be a private
person ; which because it cannot be in any full sense or
acceptation of a law, but in nature only, so neither can the
tribute be of so private emolument, but it will at least indi-
rectly do advantage to the public.

3. In other tributes, such which are legal, public, and
universal, the tribute must be proportioned to the necessity
and cause of it ; it must be employed in that end to which
it was imposed and paid, for that is a part of commutative
justice; it must be equally laid, that is, as far as it can be
prudently done, supposing the unavoidable errors in public
affairs in which so many particulars are to be considered,
for this is a part of distributive justice : and where there is a
defailance in these, I mean, a constant and notorious, there
the conscience is disobliged, as far as the excess and injustice
reach, just as it is from the obedience to other laws that
are unjust; of which I have given account in the third rule
of the first chapter of this book. But this, I say, is true in
such tributes as are of public and common use. For those
which are for the expenses and personal use of the prince, if
he spends them well or ill, the subject is not concerned ; but
only that he pay it according to the law and custom. In
these, the supreme power is a supreme lord ; in the other,
he is but a supreme steward and dispenser.

4. As the laws of tribute have their original and their

d Bp. Taylor alludes to the following passage : " Id autem imperiam cum
retineri sine vectigalibus nullo modo possit, jequo aniuio parte aliqua suorum
fructuum pacem sibi sempiternam redimat atque otium." Ep. ad Q. Fratr. i. n. 11.
Priestley's ed. vol. T. p. 976. (J. R. P.)



AND TRIBUTARY. 419

obligation, so they have their dissolution as other laws have,
with this only difference, that the laws of tribute, when the
reason ceases, if they be continued by custom, are still oblig-
ing to the subject,' it being reason enough that the supreme
power hath an advantage by it, which cannot be so personal
but that it will, like the brightness of the sun, reflect light
and heat upon the subject.

5. Lastly, In the levying and imposing tribute, by the
voice of most men, those things usually are excepted which
are spent in our personal necessities. Whatsoever is for
negotiation, may pay, but not what is to be eaten and drunk.
This tribute, nevertheless, is paid in Spain ; for it is that
which they call * alcavala ;' and in Portugal, where it is
called ' sisa.' I suppose it is the same with the ' excise' in
England and the Low Countries ; and yet it is much spoken
against for these reasons, 1 . Because it is too great an indi-
cation or likeness to slavery, and an uningenuous subjection
to pay tribute for our meat and drink and the necessaries of
life; it is every day a compounding for our life, as if we
were condemned persons, and were to live at a price, or die
with hunger, unless by our money we buy our reprieve.
2. The other reason of the complaint made against this, is
because by this means the poor, and he that hath the greatest
charge of children, and he that is the most hospitable to
strangers and to the poor, shall pay the most, who yet, of
all men, ought most to be eased. And, upon these or the
like reasons, the civil law imposed gabels only upon mer-
chandises for trade, and gain, and pleasure. And of this
opinion are generally all the canonists'^ and most of the
civilians, and very many divines : but when scholars come to
dispute the interest of princes and the measures of their gain
or necessities, they speak some things prettily, but to no
great purpose. In these and all other cases of this nature,
kings and princes will do what they please ; and it is fit
they should, let us talk what we will, always provided, that
they remember they are to answer to God for their whole

' Praeterea cum pedagia, guidagia, saliriaria tibi legatus interdixerit, auctori-
tate apostolica duximus declarandum, ilia esse pedagia, salinaria, guidafrisi inter-
dicta, quae non apparent imperatorum, vel regum, vel Laterauensis Concilii largi-
tione concessa, vel ex antiqua consuetudine a tempore, cujus non extat memoria
introducta Innocent, iii. de Verb. Signif. c. super quibusdam, sect. 1.

' L. Umbers. C. de Vectig. et lib. omnium C. cod.



420 OF LAWS PENAL

government ; and how they should be enabled to make this
answer with joy, they are to consult with the laws of God
and of the land, and with their subjects learned in them
both : and that, above all men, princes consider not always
what they may do, but what is good ; and very often, what
is best. This only : Tribute upon meat and drink is not of
itself unjust ; but it is commonly made so : for whether the
tribute be paid only by the merchant, as in Castile and Eng-
land ; or by the merchant and him that spends them for his
need, and not for his gain, as in Portugal ; yet still the poor
man is the most burdened in such cases : for the merchant
will sell the dearer, and then the evil falls upon the poor
housekeeper, contrary to the intention of all good princes ;
which if they will take care to prevent, I know nothing
to hinder them, but that, by the same rules, which they
observe in making other laws, they may take their liberty
in this.



RULE X.

Tribute, and Customs which are due, are to be paid whether
they be demanded or no.

1. THIS is but the result of the former discourses. For if a
tribute be just, it is a due debt, and to be paid as any other :
and human laws do not only make the paying tribute to be
necessary in the virtue of obedience, for then unless the law
expressed that it ought to be paid, though it be not parti-
cularly demanded, the subject not demanded were free ; but
the laws place this obedience in the form and matter of its
proper kind of virtue, it is justice to pay it, and that must
not be omitted at all ; for our duty is not to depend upon the
diligence of other men ; and if the ministers of the prince be
negligent, yet we must not be unjust. This is true in
subjects and natives ; but strangers are free, unless they be
required to pay: always supposing that they go in public
ways and with open address. For it is presumed that they
are ignorant inculpably in the laws of the country, and they
are less obliged ; but therefore these defects are to be sup-
plied by the care of them that are intrusted. But if they



AND TRIBUTARY. 421

know it already, they are obliged as the natives, according
to the laws, and must not pretend ignorance, in fraud and
cozenage.

2. But this also is to be understood of customs and tributes
which are just. In which number, those which are of an im-
memorial time and long use,, ever are to be presumed. Those
which are newly imposed, may better be considered whether
they be or no, because they want that approbation which is
given to the old. But whatsoever are unjust, do not oblige
to payment; and the merchant may use all just ways of
escape and concealment. He may not lie, nor forswear, nor
deny them to be there when they are there, and he is asked ;
but he may hide them, or go into secret ways : and if he be
discovered, he must suffer as they please, but his conscience
is free.

3. He that pays not tribute, upon pretence that it is
unjust, that is, it is imposed by an incompetent authority, or
in an undue manner, or unjust measure, must be sure that
it is unjust, and not only think so. For if he be deceived, he
does not err with a good conscience, unless he use all the
diligence and ingenuous inquiries than he can. His igno-
rance must not, and cannot innocently, prejudice the prince's
rights. If therefore he inquire well and wisely, unless the
injustice be very clear and certain, he will at most but doubt
concerning it ; and if he does, the surer way is to pay it :
but if he does not doubt r but is fully persuaded of the injus-
tice, if he thinks true, he is innocent ; but if he thinks
amiss, he is not only guilty of a culpable ignorance, but of a
criminal injustice.

4. If the subject does doubt, the presumption is for the
advantage of the prince, because he is the better person, and
public, and he is rather to be secured than the private and
the inferior. And therefore I wonder at those lawyers arid
divines that say otherwise, upon pretence that " in dubiis
melior est conditio possidentis ; The possessor is to be pre-
ferred in doubtful cases." For supposing this, yet the prince
is in the possession of law, and the subject in possession of
fact : the prince is in possession of an actual right and law
of demanding it, and therefore his condition is to be prefer-
red. For in the practice of paying tribute, it is not sufficient
cause of omitting to pay it, that the subject doubts whether



422 OF LAWS PENAL AND TRIBUTARY.

it be, or is not sure that it is, just. For unless he be sure it
is unjust, it is sure that he is bound to pay. And therefore,
in this case, let no merchant trust his own judgment, but
the sentence of a wise spiritual guide, or of counsel learned in
the laws.

5. One thing only I advertise in order to practice : Let
no man think that because some subjects farm the customs,
and that the portion which is concealed does not lessen the
incomes of the prince, therefore it may be lawful to hide from
them all which they can hide. For the farmer hath what he
gets in the right of the prince, and in his own right he hath
nothing from the subject, but from his supreme ; who there-
fore is bound to defend that right, and to complain of that
wrong ; and the husbandmen in the Gospel, who denied to
pay to the stewards of the king the fruits of the vineyard,
which, in their king's right, were demanded of them, were
thrown into outer darkness.

6. But then, as St. John Baptist gave counsel, " the tri-
bute-men and farmers must exact no more than is appointed
them ;" nor yet in cruel and vexatious manners, nor with the
exactest and utmost measures, but with such moderation as
may be far from rapine. " Tributorum et fisci nunquam mala
causa nisi sub bono principe," was an old saying ; " What-
soever was demanded by the tribute-gatherers, it was all
justice, whether it were right or wrong, unless the prince
were gentle and good." But the vulturelike greediness and
unconscionable, unchristian, and avaricious proceedings which
are too frequent amongst such men, have made the name of
exactors and publicans 3 so infinitely, so intolerably hateful.

Curandum in primis, ne magna injuria fiat

Fortibus et miseris. Tollas licet omne, quod usquam est

Auri atque argenti ; scutum gladiumque relinques

Et jacula et galeam : spoliatis arma supersunt.*

It is not good to provoke the valiant by making them poor

* Quid est publicanus 1 Nonne caput rapinae et violentiae 1 Quid est publi-
canus? Praedo sine pudore, medius exterminii. Nonne immanior furibus publi-
canus 1 Fur namque vel metuens furatur, Lie autem delinquit confidenter. Fur
laqueos tegit, timet, bic autem quicquid fecerit, legem putat. Lex furem deterret
ab illicitis, hie ad iniquum malitiae sua: compendium legem trabit. Quis eo
iniquiorqui verbis justitiae justitiam damnat, et armis innocentiae spoliat, vulnerat,
occidit innocentes 1 lege utique legem pervertit, et dum urget ad legem, eilex est.
Lauret. Episc. Medial, in Homil.

b Juvenal viii. 121. Ruperti, 2d ed. p. 168.



OF SUPREME CIVIL POWERS, &C. 423

and miserable ; for they that have not a* cloak, may have a
sword : and by how much you make them the less consider-
able in peace, they are the more dangerous in war. And
therefore covetous princes are to themselves the greatest
enemies, excepting only their more covetous exactors.



CHAPTER III.

OF KINGS, PRINCES, AND ALL SUPREME CIVIL POWERS,
AND THEIR LAWS IN SPECIAL.

RULE I.

The Supreme Power in every Republic is universal, absolute,
and unlimited.

1 . THAT in every commonwealth there is a supreme power,
is without all question : there is no government without supe-
riority ; and where there is a superior, there is a supreme ;
for he is so that hath none above him. It matters not whe-
ther this supreme power be subjected in one or many, whether
it be parted or united : the consideration of these is material
as to the goodness or badness of a government, but nothing
to the power and absoluteness of it, nothing to the present
rule. And therefore it is but a weak and useless distinction,
when we speak of kings and princes (by them meaning the
supreme power), to say that some are absolute, some are
limited in their power : for it is true that some princes are
so ; but then they are not the supreme power. It is a
contradiction to say that the supreme power is limited or
restrained ; for that which restrains it, is superior to it, and
therefore the other is not supreme. And therefore Albericus
Gentilis said well, ' that he doubted concerning the kings of
France and Spain, whether they were supreme princes, be-
cause in the affairs of religion they are subject to the pope.'
He that hath the supreme power, is only under God ; and
to inquire concerning a king, whether he be tied to laws or
conditions, is not properly an inquiry after his power, but
after the exercise and dispensation of it. For though he may
not always use it, yet the supreme power always is absolute



424 OF SUPREME CIVIL POWERS,

and unlimited, and can do what he please. The difference
of a tyrant and a king or a gentle prince being only this, that
a tyrant uses his absolute power unreasonably, and unjustly,
and ordinarily; but a king uses it not but in cases extraor-
dinary, for just and good ends : and if the prince does not,
some else must, who, in that case, is the supreme. Some-
times the consuls, sometimes the dictators, sometimes the
senate, did do extraordinary acts of power ; but still they
who did it had the supreme power : and that is necessary
and inseparable from government, that, I mean, which is
supreme : "Axgav fi^ouffiav, xvgiav a0^v, xi/g/oy roX/rt>/Aa, the
Greeks call it ; ' majestatem,' the Latins : and be it in whom
or in how many it happens, that power can do every thing of
government, and disposes of all things in order to it, and is
accountable to no man. For suppose a king that hath power
of the militia, and his senate of making laws, and his people by
their committees of raising money, this power of making
war, and laws, and levies, is the supreme power, and is that
which can do all things ; and although one be accountable for
money, and the other subject to laws, and two of them under
the power of the sword, yet this is but the majesty or supre-
macy parted, and whether well or ill, I dispute not ; yet when
it is parted and when it is united, it is supreme, and it is all.
That government which Aristotle calls Xaxwv//e^, doxs? tTmi
/3a<jv>./a ruv Kara vo/J,uv, ovx. tffn ds xugia, vdvruv, "seems
(says he) to be a kingdom, but yet subject to laws, but is not
the mistress of all;" and this is true in many European
governments : but there is another government where the
governor is vavrw x-jgiog sJg o)v, "lord of all, and but one
person ;" that is the perfect monarchy ; but yet that is no
greater power than is in every kind of government ; for be it
where it will, somewhere or other, in all government, there
must be a supreme power, and that power is absolute and
unlimited. For suppose a king that could be questioned by
his senate, deposed, judged, condemned, as Diodorus Siculus a
tells of the kings of Egypt ; yet they that judge the king,
cannot be judged themselves, if they have right to judge
him ; or at least they must stand at a judicatory that cannot
be judged, and there is the supremacy placed. Now this
being thus stated, the rule is clear, and the Jews expressed it

a Lib. ii.



AND THEIR LAWS IN SPECIAL. 425

by an odd device of theirs : for when their king died, they
tied his thumb so in the palm of his hand, that the wrinkles
of the fist should, in a manner that might be fancied, repre-
sent HIP which signifies 'almighty;' to denote that he was
God's vicegerent, and under him had the whole power of
government. He had in his right hand a power like the
power of God : but the other hand was open and had let it go.

2. Now that this is true, is apparent by all the same rea-
sons by which the necessity of government is proved. It is
necessary that it should be so ; for there are some states of
things for which nothing can provide but this 'absoluta
potestas, supreme and unlimited power;' as at Rome, when
the Gauls had almost possessed themselves of all, and in
many cases of their appointing dictators, and in sudden inva-
sions, and in the inundation of tumults, and in all cases
where laws are disabled to speak or act, " ne respublica
aliquid detriment! patiatur, that the public should by all
means be preserved," is the greatest necessity they can have,
and that is the great end of power; and either the common-
wealth is like a helpless orphan, exposed to chance and vio-
lence, and left without guards : or else she hath so much
power as to use all means for her safety. If she have not a
right to do all that she naturally can, and is naturally neces-
sary, she is deficient in the great end of government ; and
therefore it must be certain, she hath absolute power: now
wherever this is subjected, there it is habitually, there it is
always. I do not say it is always there, where it is some-
times actually administered ; but there it is habitually from
whence it is concredited actually, and put into delegation
and ministry : and this is the power that can do all things
of government, and because if is supreme, and it is so always?,
it cannot be at any time less in judgment, because it is greater
in power ; that is, it is accountable to no man whatsoever it
does.

Qui rex est, regem, Maxime, non habeat. b

3. This supreme power is commonly expressed by * po-
testas regia,' or ' kingly power,' or power imperial ; though
when the emperor was lord of the world, to be a king in
most places went much less : but because most kings have



"Martial, ii. 18. Mattaire, p. 37.



426 OF SUPREME CIVIL POWERS,

been and are supreme in their own dominions, by this word we
commonly mean the supremacy or the majesty. So Sueto-
nius, speaking of Caligula, says he was very near " speciem
principatus in regni formam convertere, to change the
government into a kingdom ;" that is, to make it absolute
and supreme : and this distinction Piso d used concerning
Germanicus, " Principis Romani, non Parthi reges esse
filinm," meaning, that the Parthian kings were absolute, but
the Roman princes ruled with the senate : and Caesar tells
that Vercingetorix was put to death, because he, being but
the prince of the Gauls, affected the kingdom. Baff/Aeis
avrortXys tvrus %ai alroxgarug xal sauroD xal ruv VO/JMV, xavra
ri o/a (SovXojro voif}, xai wav&' offa av /&% /SouXo/ro ILV\ ^pdr-rr,. So
Dion e described the power of a king, for that which they
understood to be the supreme power.

"S.U <roi voXi;, <ru St ro !ir,u.iti,
Tl^uTdtii; eixoirof &!v,
Kgarvvtis fttufiav lirrttzt %4ovos.
tHovo'tyntyoifi tiuftaffi ffidv, &c.

So the people in jEschylus f speak to their king : "Thou art
our city, our commonwealth, above all judicatories, thy
throne is sacred and immured as an altar, and by thy suf-
frage, by thy own will, thou governest all things." This is
the 'jus regium,' this the supreme power can do, it can be
no less than this in its own nature and appointment. So the
power is described in Theophilus : g Uaaav (3asiXs-? dsduxs xara
roD 3?j/iou tZovriav, " He hath given to the king all power
over the people." So it is described by Livy : h " Reges, non
liberi solum impedimentis omnibus, sed domini rerum tern-
porumque, trahunt consiliis cuncta, non sequuntur; Kings
are not only free from all lets and incunibrances, but are
lords of times and things ; they by their counsels draw all
things after them, but follow not." The Greeks call this
supremacy, Jcr/rarrs/v avwffivdvvov ocra, "a power to rule
without danger of being called to account by men." St.
Ambrose calls it, " non ullis ad poenam vocari legibus, tutos
imperii potestate ; a power that is safe in its own cir-
cles, and can by no laws be called to punishment :" rqv

e Caligul. c. xxii. ed. B. Crus. vol. i. p. 509.

d Tacit Annul, ii. c. 67. Oberlin. Load. ed. vol. i. p. 155.

e Lib. liii. f Supplic. 375, ed. Butler, vol. ii. p. 18.

8 Decad. 1, lib. ix. h Lib. i. x. c. 18. Ruperti, vol. i. p. 640.



AND THEIR LAWS IN SPECIAL. 427

fiv, that is Galen's word, " it is the chief or prime
principality." " The king alone (or he or they, who have



toto jam liber in orbe

Solus Caesar erit *

the kingly power) is free :" all others are under compulso-
ries and judges. But St. Peter's phrase is better than all of
them, ' TxordffffiTi ru $a.Gi\ii ug \jxtss-/jvn' The king is the
most eminent, the defender of all ; and above all, I/^E/,
ixtPfiayjZ, vxf9asvi?ei, saith Suidas, The king or the supreme
hath the power of defence, the power of the sword, and that
commands all the rest : for u-rm^wv, faigvixuv, it signifies to be
more than conqueror. So the grammarians.

4. But in order to conscience, kings and princes, I mean
all supreme powers, must distinguish " potestatem imperil
ab officio imperantis ;" that is to be considered by subjects,
and this by princes ; supreme princes always have an abso-
lute power, but they may not always use it. He that hath
a sword by him is not always tied to use it, and he must cut



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