debt, gives or lends it to him that is principally obliged; and therefore it is just to take it, and the surety hath power to do it. But by the way it is observable, that the surety can only oblige his money, or himself to the payment of his money: but when the creditors had power to torment the insolvent debtors, no man could give himself a surety directly for that torment; but by making himself a debtor, he did by consequence make himself criminal if he did not pay, and so might with as much justice be tormented as the principal debtor. 4. But the whole business is unreasonable as to this instance, and therefore the inquiry is soon at an end, and the case of conscience wholly different; for in this particular it is not only unlawful to punish the surety with corporal punishment, but even the principal that is insolvent, is to be let alone. If he fell into poverty by his prodigality, the law may punish that as she please; or if he intends to defraud the creditor, he may be punished, or constrained to pay: but if he fall into poverty ἐκ τοῦ συμβεβηκότος καὶ οὐ ῥαθυμίᾳ, as Justinian's expression is, "by unavoidable accident, not by impious courses," it is against justice and charity to put him to trouble. 5. Concerning which, though it be not pertinent to this rule, but here only very well occasioned, I shall give this short account, that at once I may be wholly quit of this particular. In the laws of the Twelve Tables, it was permitted to creditors to imprison, to torment, to put their insolvent debtors to death; and if there were many of them, they might cut the body in pieces, and every man go away with his share. "Nihil profecto immitius," says A. Gellius"; "nisi, ut reipsâ apparet, eo consilio tanta immanitas pœnæ denunciata est, ne ad eam unquam perveniretur." It was an intolerable 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 never 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. b Lib. 20. cap. 1. Oiselii, p. 1106. The king of Cyprus was so used, as Cicero, in his oration 'pro Sextio' 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, quò non amici conveniut ad exsequias cohonestandas, sed bonorum emptores, ut carnifices, ad reliquias vitæ lacerandas et distrahendas," said Cicero 1: and Manlius most worthily, seeing a Roman led to prison like a slave, for debt, cried out, "Tum verò ego nequidquam hâc dextrâ Capitolium arcemque servaverim, si civem commilitonemque 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 Petilius 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 extended not to prodigal and vain persons, but to those only "qui vi majore aliquâ 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 Manianam,' that is, whipped extremely; and this continued under the time of Gratian the emperor, who decreed 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 debitæ quantitatis congruâ atque dignissimâ suppliciorum acerbitate cogantur," "they should be compelled by torment to pay a due proportion":"-and in this there might be severity; but it Pro Quintio, cap. 15.-Beck, vol. 1. pag. 19. Liv. lib. 6. cap. 14. Ruperti, vol. 1. pag. 441. 1 Lib. 1. Cod. Theod. m m Vide Rævardum ad Ll. 22. Tabul. cap. 8. "Lib. 1. Cod. Theod, qui bon. ex leg. Jul. ced. et 1. si victum ff. de re Judic. had in it very much of justice. But for the other part of it, of the entire cession of goods, and that the insolvent, miserable debtor, should be exposed to starving, this had neither charity in it nor justice; and therefore after much complaining, and attempts of ease, it was wholly taken away by the emperors, Constantine, Gratian, and Justinian: Ilou yàp δίκαιον τὸν ἅπαξ ἐκ τοῦ συμβεβηκότος καὶ οὐ ῥᾳθυμίᾳ παραδιδομένῃ ἐκτὸς τῶν αὐτοῦ γεγονότα, αὖθις ἀσχήμονα τὸν βίον ἑαυτῷ παρατιθέναι, καὶ τῆς ἐφημέρου τροφῆς, καὶ τῆς τε τοῦ σώματος σκέπης ἔξω βιαίως καταστῆναι. “It is infnitely 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 P 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 of C. Manlius in Sallust; 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 appears by the endeavours of the wiser Romans to correct the Lib. 2. cap. de Exact. Tribut. lib. 10. ▸ In Rullum. 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, dum cogeretur solvere quod non habebat; trahi ad carcerem quia vinum deesset ad mensam potentis; deducere in auctionem filios suos, ut ad tempus pœnam differre possit: inventum fortè aliquem qui in illa 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 pœnis 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 arresting 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 blames such unnatural cruelty, and derides the folly of it; 'Quoties vidi a fœneratoribus teneri defunctos pro pignore, et negari tumulum dum fœnus exposcitur? Quibus ego acquiescens dixi, Tenete reum vestrum, et ne possit elabi, domum ducite; claudite in cubiculo isto, carnificibus duriores : quoniam quem vos tenetis, carcer 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, ye that are more cruel than hangmen."-But of this suf Lih. de Nabuth. cap. 5. Offic. lib. 1. Lib. de Tobia, cap. 10. ficient; 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 complain of it; and that is in the customs of France, where they never imprison any alive for debt, unless he be expressly condemned to it by the sentence of the judge, or contracted upon those terms with the creditor: but when the man is dead, they 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, duodecim Tabulæ, inopem crudeliter Quæ debitorem dissecant, Aut jura, mores publici, Quæ carceribus illum miserè Et opprimunt et enecant, Nimis mihi, nimis displicent. Qui Gallum habuit mos, bonus Idem et verus probabitur Nimis mihi 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 lawyer and Baldus speaking exact antinomies. For Baldus" affirms, "Hæredem teneri ad pœnam, ad quam defunctus fuerat condemnatus," "The heir of his father inherits his father's punishment:" but Paulus* says expressly, “Hæredem non teneri ad pœnam 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; u In l. id quod Pauperibus, qu. 9. C. de Episcopis Clericis. * In 1. si Pœna, ff. de Pœnis. |