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but over his goods he hath, and therefore can transmit these with their proper burden: and therefore the heir is liable 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, 80 neither, for his misfortune, can he be obliged beyond the suffering of a descending poverty. If his father was insolvent 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 quem melior factus non est," says the law. And therefore St. Ambrose complained of a sad sight he saw; “Vidi ego miserabile spectaculum, liberos pro paterno debito in auctionem deduci, et teneri calamitatis hæredes, 'qui non essent participes successionis, et hoc tam 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. “Nunquam unus pro alio potest pæna corporis puniri,” said Alexander of Hales", and Thomas Aquinas "; “No man can suffer corporal punishment in the place of another:" the same with that in the lawb. And therefore of all things in the world, conjunction of nature, which should be a means of endearment, and the most profitable communications, ought not to be an instrument of the communication of evil: “Unius factum alteri, qui nihil fecit, non nocet;" and again d: "Peccata suos teneant auctores, nec ulterius progrediatur metus, quam reperiatur delictum.” But it is expressly instanced Lib. de Tobia. cap. 8.
: 3. p. q. 41. in 4. a. 4. corollar. 3. • In 2. 2æ. q. 180. a. 4. ad. 2. O L. Crimen ff. de Papis. • L. de Pupillo, 5. sect. Si. Pluriam. ff. Nov, op. nant. & L. Sanotmus, 22. cap. de Pænis.
in this matter of succession; “Unusquisque ex suo admisso pænæ subjiciatur, nec 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' that rebelled at Rhegium, and possessed 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. For the rule of the law is, “Quod à 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. 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, iba pena consisteret.” And C. Decimius 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 incendiaries; 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. Crimen. ff. eod.
I Liv. xxvii. 29. & Sueton. in Julio. cap. 69. in August. cap. 24.
L. semper, seci. 2. A. Quod. vi aol cl. et l. item Mela, seot. 2. f. ad legem Aquiliam.
i Livius, lib. 36.
* Lib. 45.10.
killing the governor and some great officers in the sedition. Sometimes the criminals were decimated by lot, as appears in Polybius', Tacitus “, Plutarch“, Appiano, Diop, Julius Capitolinus”, who also mentions a centesimation. And the reason of this equity Cicero' well discourses in his oration, pro Cluentio,' “ut metus ad omnes, pæna ad paucos perveniret ;" "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 commanders only are to be punished, “ Ne alieni admissi penam luant, quos nulla contingit culpa” For the people are soon commanded by bim that stands next above them. And therefore 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 authority 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, “Quæ pæna delictis imposita est, si plures deliquerint, à singulis in solidum debetur.” But if many were in the crime, then the rule of equity and the gentleness of the law" are to take place, “ Ut pænæ interpretatione potius molliantur, quam exasperentur;" a few should be punished for all the rest,“ ut supersint quos peccasse pæniteat.” For it is of great avail for the public interest, that as some be cut off, so some should remain alive, that they may repent. And in this sense is that of Lucan,' sed illos Defendit numerus janctæque ambone phalanges!, The determination of these two particulars I learn from Cicero in his oration pro Flacco :' “ Vobis autem est confitendum: si consiliis principum vestræ 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 tum motas 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 :” “ Multitudo peccavit, sed non universitas." For a rabble does not make a city, a people, or a republic; for to make this, it must be “ cætus qui jure aliquo continetur,” a multitude under government, and a legal head.
quioquid multis peccator, inaltam est. Besides that it is evil to the commonwealth to lose so many zubjects; it is also sometimes dangerous ; I Lib. Hist. 6. m Lib. i. 37.
n lu Crasso. . Civil. 2. D Lib. 48.
1 In Opilio Macrone. r C. 46. Beck, vol. 3. pag. 105. ** L. ult. ff. de Bon. Damnat. i L. ilem Mela, ff. ad leg. Aquil. 4 Leg. Pwu. ff. de Pænis. * Phars. v. 260. Oudendorp, pag. 360.
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 than the ringleaders and the boutefeus 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.
OF LAWS OF TRIBUTE.
RULE VIII. 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 argument to prove that we ought to obey the Jav. ii. 45. Ruperti.
* Cap. 24. Beck. vol. 4. pag. 61. • L. Mentum. sect. Animadvertendam. ff. quod met. caus. Rom. xiii.
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, nec stipendia sine tributis haberi queunt,” said Tacitus °; “No peace without laws; no laws without a coercitive power; no power without guards and soldiers d; 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, quæ tributim a singulis proportione census exigebatur,” 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 therefore they ought to pay tribute to Cæsar; 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 Cæsaris,' as he was pleased to call it, 'the things of Cæsar;' 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, 60 we owe obedience to whom we owe tribute: that is, if we
c Histor. ir. cap. 74. Oberlin, vol. 2. p. 307. Lond. ed.
d Ad hoc tributa præstamus, ut propter necessaria militi stipendium præbeatur, 8. Aug.lib. 22. cap. 74-Cap, Paust. Manich.-Cicero pro lege Manilia.